Children Entering the United States Unaccompanied: Section 3
Care provider facilities are State licensed and must meet ORR requirements to ensure a high level of quality care. The facilities, which operate under cooperative agreements and contracts, provide children with classroom education, health care, socialization/recreation, vocational training, mental health services, access to legal services, access to Child Advocates where applicable, and case management. They also undertake ongoing efforts to identify and assess relatives or other individuals in the United States as sponsors to whom children can be safely released. Care provider facilities’ case management teams use standardized screening tools to assess children for mental health and victims of trafficking issues.
Once the care provider has physical custody of the unaccompanied alien child, the care provider must complete the admissions and orientation process. Care provider staff must be trained in techniques for child-friendly and trauma-informed interviewing, assessment, observation and other techniques. Care providers must also be trained to identify suspected victims of trafficking and children who have been smuggled into the country. Foster parents are not responsible for conducting admissions procedures, but they must be trained on the above topics in order to identify issues that may arise and report them to the care provider.
Care providers who operate secure or staff secure facilities must ensure that the unaccompanied alien children initially placed or transferred to their facility are provided a notice in a format and language accessible to the child as to why they were placed in the facility.
If the care provider staff determines during the admissions and intake process that the unaccompanied alien child’s health or life is in imminent risk or their condition places the safety of others at imminent risk, the care provider must contact 9-1-1 for crisis response and transportation to the nearest emergency room.
If the care provider determines that the unaccompanied alien child requires medical attention, the care provider arranges for the unaccompanied alien child to be evaluated by a medical and/or mental health provider as soon as possible upon the unaccompanied alien child’s arrival at the facility.
Where available, the care provider or any stakeholder may request the appointment of a Child Advocate for an unaccompanied alien child who is a victim of trafficking or is found to be especially vulnerable (See Section 2.3.4). ORR decides whether to appoint a Child Advocate.
After obtaining physical custody of an unaccompanied alien child, the care provider must immediately ensure the physical and mental well-being of the child by:
- Ensuring that the unaccompanied alien child receives food and beverages and bathes or showers within two hours of entering the care provider facility.
- Providing the unaccompanied alien child, at a minimum, with the following items: clean clothing, clean bedding, and personal hygiene items.
- Assisting the unaccompanied alien child in contacting family members or other relatives, if contact is considered safe, following ORR and the care provider’s internal safety procedures.
- Ensuring that to the extent practical under the circumstances, the child eats and bathes before interacting with other children.
- Ensuring that the unaccompanied alien child receives a complete initial medical exam, including screening for infectious diseases by a licensed physician or physician’s assistant, within 48 hours of admission (excluding weekends and holidays).
- Creating an inventory list for all cash and other property obtained from the unaccompanied alien child upon admission.
To identify any of the child’s immediate needs or issues, a trained staff member with the care provider must use the Initial Intakes Assessment to interview the child within 24 hours of the child’s admission to the facility. The Initial Intakes Assessment guides the interviewer through a series of questions to obtain information about family members, any immediate medical or mental health concerns, current medications, and any concerns about personal safety that the child may have at that time.
Prior to interviewing the UAC using the Initial Intakes Assessment, the care provider informs the youth that providing honest answers to all assessments is essential. The care provider also informs the UAC that self-disclosure of previously unreported criminal history or violent behavior to any other children, care provider staff, ORR, or others, may result in the child’s transfer to another care provider facility and may affect their release.
If the unaccompanied alien child’s responses to questions during the Initial Intakes Assessment, initial medical examination, or other assessments indicate the possibility that the child may have been a victim of human trafficking, the care provider notifies the Office of Trafficking in Persons (OTIP) within 24 hours.
Care providers must have a standardized orientation that is provided to all admitted unaccompanied alien children. The orientation must be provided within 48 hours of admission and must be presented in a fashion that is appropriate for the age, culture, and language of the child or youth. The orientation must be provided in formats that are accessible to unaccompanied alien children who are limited English proficient, deaf, visually impaired or otherwise disabled, as well as those who have limited reading skills.
If the unaccompanied alien child is not literate, the care provider must verbally explain all the documents in the unaccompanied alien child’s native or preferred language. If forms are not translated into a language that the unaccompanied alien child can read, the care provider staff must verbally translate the document for the child or youth. Care providers lacking staff who speak an unaccompanied alien child’s native or preferred language must make every attempt to utilize a professional translation service for the unaccompanied alien child’s orientation. In cases where no such service exists, or is unavailable, then care providers must consult with the ORR FFS, the Care Coordinator, and other relevant stakeholders to create and implement a strategy for communicating with the unaccompanied alien child as effectively as possible.
As part of the orientation, the care provider must also provide the unaccompanied alien child a tour of the facility and note emergency evacuation routes and exits. The orientation must include the following information: an explanation of the nature of the unaccompanied alien child’s custody in ORR; the care provider’s rules, responsibilities, and procedures; the unaccompanied alien child’s rights and responsibilities, including general legal-related information; the care provider’s behavior management policies; the care provider’s grievance policies and procedures; emergency and evacuation procedures; and other policies and procedures to help the child or youth adjust to the new setting.
Care providers must comply with all applicable State child welfare laws and regulations and all State and local building, fire, health and safety codes. Care providers must deliver services in a manner that is sensitive to the age, culture, native language, and needs of each unaccompanied alien child. Care providers must develop an individual service plan for the care of each child.
Care providers are also required to maintain records of case files and make regular reports to ORR. Care providers must have accountability systems in place which preserve the confidentiality of client information and protect the records from unauthorized use or disclosure.
Under the terms of the Flores Settlement Agreement, care providers must provide the following minimum services1 for each unaccompanied alien child in their care:
- Proper physical care and maintenance, including suitable living accommodations, food, appropriate clothing and personal grooming items.
- Appropriate routine medical and dental care, family planning services, including pregnancy tests and comprehensive information about and access to medical reproductive health services and emergency contraception, and emergency health care services, including a complete medical examination (including screenings for infectious disease) within 48 hours of admission, excluding weekends and holidays, unless the unaccompanied alien child was recently examined at another ORR care provider facility; appropriate immunizations in accordance with recommendations of the U.S. Department of Health and Human Services /U.S. Public Health Service (PHS), Centers for Disease Control and Prevention (CDC); administration of prescribed medication and special diets; appropriate mental health interventions when necessary.
- An individualized needs assessment, which includes the various initial intake forms, collection of essential data relating to the identification and history of the child and his or her family, identification of the unaccompanied alien child’s special needs including any specific problems which appear to require immediate intervention, an educational assessment and plan, 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 alien 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.
- Educational services appropriate to the unaccompanied alien child’s level of development and communication skills in a structured classroom setting Monday-Friday, which concentrates primarily on the development of basic academic competencies and secondarily on English Language Training. The educational program shall include instruction and educational and other reading materials in such languages as needed. Basic academic areas should include Science, Social Studies, Math, Reading, Writing and Physical Education. The program must provide unaccompanied alien children with appropriate reading materials in languages other than English for use during leisure time.
- 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 should not include time spent watching television). Activities should be increased to a total of three hours on days when school is not in session.
- 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 at least twice a week. Sessions are usually informal and take place with all unaccompanied alien children present. The sessions give new unaccompanied alien children the opportunity to get acquainted with staff, other children, and the rules of the program. It is an open forum where everyone gets a chance to speak. Daily program management is discussed and decisions are made about recreational and other activities. The sessions allow staff and unaccompanied alien children to discuss whatever is on their minds and to resolve problems.
- Acculturation and adaptation services which include information regarding the development of social and inter-personal skills which contribute to those abilities necessary to live independently and responsibly.
- A comprehensive orientation regarding program intent, services, rules (written and verbal), expectations and the availability of legal assistance.
- Whenever possible, access to religious services of the child’s choice.
- 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 alien child.
- A reasonable right to privacy, which includes the right to wear his or her 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.
- 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 alien child.
- Legal services information, including the availability of free legal assistance, the right to be represented by counsel at no expense to the government, the right to a removal hearing before an immigration judge, the right to apply for asylum or to request voluntary departure in lieu of deportation. (This information is included in the Legal Resource Guide for Unaccompanied Alien Children)
Within 5 days of an unaccompanied alien child’s admission, a trained staff member conducts an assessment that covers biographic, family, legal/migration, medical, substance abuse, and mental health history (the UAC Assessment).
The UAC Assessment is used by the care provider as the basis for an initial release plan for the unaccompanied alien child and is the initial form used to evaluate the child or youth for services. An unaccompanied alien child may not be transferred to another ORR care provider or released from ORR custody to a sponsor until the care provider has completed the assessment.
The care provider continues to update the child or youth’s case file using another assessment tool (the UAC Case Review). This form is used to make sure that the case is continually updated (initially on the unaccompanied alien child’s 30th day in the care provider’s care and subsequently every 30 days or every 90 days in a long term foster care provider’s care). This information is entered into the child’s case management record in a timely fashion to identify any changes that impact a release care plan or individual service plan.
Care providers create long term plans to address the individual needs of each unaccompanied alien child following release from ORR. Whenever possible, this involves releasing an unaccompanied alien child to the care of a family member.
In some cases, care providers may conduct concurrent planning for the child’s future. Concurrent planning is the exploring of alternative options to the sponsorship process (including multiple sponsorship options) during the process of preparing to release children to parents, other relatives, or family friends.
In some situations, release to a family member is not an option for the child or youth. In those instances, the care provider must explore other planning options for the future. These include:
- Release to an unrelated sponsor
- Release to a licensed program or other entity
- Preparation for discharge and repatriation
- Planning for teens turning 18 years of age, and “aging out” of ORR custody
- Residential Treatment Center (RTC) or ORR Long Term Foster Care (LTFC) or transfer to another care provider within the ORR continuum of care that is most appropriate for meeting the unaccompanied alien child’s immediate and longer term needs.
Care providers must screen all unaccompanied alien children to identify potential victims of a severe form of trafficking. The law recognizes two forms of trafficking: labor trafficking and sex trafficking.2 Labor trafficking of a child has three elements:
- Action: the child was recruited, harbored, transported, provided, or obtained
- Means: through the use of force, fraud, or coercion
- Purpose: for involuntary servitude, peonage, debt bondage, or slavery.
Sex trafficking of a child has two elements:
- Action: the child was recruited, harbored, transported, provided, obtained, patronized, or solicited
- Purpose: for a commercial sex act. A commercial sex act is defined as any sex act on account of which anything of value is given to or received by any person.
Force, fraud, or coercion (means) is not a required element for sex trafficking of a child.
The UAC assessment tool has questions designed to assist care providers in identifying victims of trafficking and children vulnerable to being trafficked. The questions in the assessment tool cover a wide range of indicators of trafficking.
Care providers must distinguish between the elements of a trafficking offense and indicators that trafficking may have occurred. A child may have experienced an indicator of trafficking, such as owing a financial debt, but may not be a victim of trafficking. A child is not a victim of trafficking unless there is forced labor or commercial sex.
Trafficking vs. Smuggling
Smuggling is a distinct crime from human trafficking. Smuggling involves a person being transported illegally over a national border. A child who was smuggled into the United States could have been trafficked while they were smuggled or smuggled as part of a trafficking scheme, but being smuggled does not automatically make the child a victim of trafficking.
Actions when care provider suspects trafficking
If a care provider suspects that a child is a trafficking victim, the care provider must refer the child’s case to the Office on Trafficking in Persons (OTIP) for further assessment. This referral is appropriate if the care provider suspects the child was a victim of trafficking at any point in the child’s life and in any country. In addition, ORR must refer any trafficking concerns to the Homeland Security Investigations division (HSI) and the Human Smuggling and Trafficking Center (HSTC), at the Department of Homeland Security. Referrals to OTIP, HSI, and HSTC may include supporting documents relevant to investigative purposes. ORR may also request assistance from other federal agencies (e.g., Department of Labor) in assessing a child’s case for potential trafficking concerns.
If OTIP identifies the child as a victim of a severe form of trafficking, OTIP issues the child an Eligibility Letter, which makes the child eligible for federally funded benefits and services to the same extent as a refugee, without regard to immigration status. Prior to issuing an Eligibility Letter, upon receipt of credible information that a child who is seeking assistance may have been subjected to a severe form of trafficking in persons, OTIP issues an Interim Assistance Letter, making the child or youth eligible for such benefits and services for a 90-day period (which may be extended for an additional 30 days). OTIP issues Eligibility and Interim Assistance Letters to children by name, in care of the care providers. The care providers retain the original letter until release, and keep copies after release (See Section 5.6.2 for care provider responsibilities relating to retention of original Eligibility and Interim Assistance Letters).
Care providers must take additional safety steps when caring for child victims of trafficking, including:
- Carefully verifying all family and sponsor relationships in order to screen for traffickers who may attempt to coerce or threaten a child;
- Adjusting the in-care safety plan as appropriate, to allow for only supervised phone calls or to revise the list of approved phone/visitation contacts for the unaccompanied alien child (See Section 3.3.4);
- Training staff and volunteers on how victims of trafficking are subject to many different methods of coercion and control, including strong bonds with an abuser and not understanding the full reality of abuse;
- Supporting unaccompanied alien children in an age-appropriate manner to identify healthy relationships and to understand common recruitment and deception tactics used by traffickers;
- Implementing additional safety measures, such as increased staff supervision or in-depth trauma-informed interviews during the planning process;
- Creating a safety plan that includes a list of safe persons, phone numbers, places to contact, and list of unsafe persons and places;
- Engaging the unaccompanied alien child in developing a plan of action for the child to take if he or she feels threatened or unsafe..
Care providers are responsible for safety planning for the facility as a whole and for developing in care individual safety plans for those children for whom it is appropriate.
Overall Safety Planning
Care providers must develop a written safety plan that includes policies and procedures for all unaccompanied alien children in its care and program staff. The safety plan must address emergency situations covering the following areas: evacuations (for example due to a hurricane, fire, or other emergency), medical and mental health emergencies, disease outbreaks, and unaccompanied alien children leaving premises without permission.
Care providers and foster care programs must meet the safety requirements maintained by State and/or local licensing entities, fire code regulations, and local zoning and building code regulations.
Care providers (with the exception of individual foster care homes) must meet the following minimum safety and security related requirements:
- Controlled entry and exit from the premises to ensure unaccompanied alien children remain within the facility perimeter and to prevent access by the public without proper authorization.
- Video monitoring in common and living areas.
- A communications system and alarm system for all areas of the residential structure.
- Effective video monitoring of the exterior of the building and surrounding premises, including the ability to permanently download footage when necessary.
- A system for physically counting the residents and a written policy that provides that staff regulate resident movement.
- A daily log on resident population movement (for example, arrivals and departures, room assignments).
- “Mirrored windows” or small windows in the doors of any rooms used for one-on-one meetings with the children.
- A facility inspection checklist that includes the safety related components of all residential operations and program functions.
- Quarterly conducted safety assessments which document any deficiencies that could impact the safety of staff or children and corrective action plans for any outstanding deficiencies.
- Spot inspections in order to note safety concerns through day-to-day observations, which are tracked and incorporated into the quarterly safety assessment.
Individualized In Care Safety Plans
Care providers must create in care safety plans for unaccompanied alien children for whom such plans are appropriate, including but not limited to those who:
- Are victims of trafficking, at high risk for trafficking, or victims of other crimes
- Have a history of criminal, juvenile justice, or gang involvement
- Have a history of behavioral issues or violence
- Have special needs, disabilities or medical or mental health issues
- Have a history of substance abuse
- Are parenting or pregnant
- May be subject to bullying (e.g., transgender youth)
- Present a risk of flight
Safety Planning for Field Trips or Other Off-Site Outings
Prior to approving a child’s participation in an off-site outing (including off-site religious services) care providers must assess the child’s current behavior and level of functioning to identify potential safety risks. As part of the assessment, care providers must take into consideration individualized safety plans created for children with specific safety or behavioral concerns. In addition, care providers must ensure that all staff involved in the outing are aware of and understand any individual needs of or concerns about each child being considered for participation in the outing.
Children who are currently identified as presenting a safety risk or risk of flight are not permitted to participate in outings. All assessments for safety risk or risk of flight will be evaluated on an individual basis and in no event will a care provider use a safety plan to bar children from outings based on factors unrelated to the child’s behavior or a specific safety concern. If a child previously posed a risk of flight from ORR custody, the child must be assessed for thirty days leading up to the planned outing before the care provider approves or denies participation in the outing. During those thirty days, if the child exhibits any degree of behavior indicating an elevated risk of flight or other safety concern, the child is not permitted to participate in the outing. As with other assessments, care providers must keep a record of their behavioral assessments in preparation for outings.
If a child is not permitted to participate in an off-site outing, care providers must make reasonable efforts to provide comparable, comprehensive services on-site in accordance with State licensing regulations and child welfare best practices. For children approved to participate in outings, care providers must explain to the children the program’s expectations for appropriate behavior during the off-site outing.
Care providers must conduct an educational assessment within 72-hours of a UAC’s admission into the facility in order to determine the academic level of the child and any particular needs he or she may have. Care providers must provide educational services based on the individual academic development, literacy level, and linguistic ability of each unaccompanied alien child.
Each unaccompanied alien child must receive a minimum of six hours of structured education, Monday through Friday, throughout the entire year in basic academic areas (Science, Social Studies, Math, Reading, Writing, Physical Education, and English as a Second Language (ESL), if applicable). Care providers adapt or modify local educational standards to develop curricula and assessments, based on the average length of stay for UAC at the care provider facility, and provide remedial education and after school tutoring as needed. Learning materials must reflect cultural diversity and sensitivity. Any academic breaks must be approved in advance by the care provider’s Project Officer. In no event will any academic break be approved that is over two (2) weeks in duration.
Unaccompanied alien children may be separated into class groups according to their academic development, level of literacy, and linguistic ability rather than by chronological age. As needed, unaccompanied alien children must be provided an opportunity for learning advancement, such as independent study, special projects, pre-GED classes and college preparatory tutorials, among others. Academic reports and progress notes are included and updated in the unaccompanied alien child’s case file which is either sent to another care provider in the event of a transfer or released to the unaccompanied alien child upon discharge.
Care providers are encouraged to create vocational training opportunities that will provide unaccompanied alien children with practical and competitive job skills and assist in the preparation for adulthood. Vocational programs may not replace academic education or be a substitute for the basic subject areas.
Care providers must document all vocational programs, including the name of the vocation or trade, staff or volunteer qualifications, frequency and duration of courses, community partnerships, course curriculum, and student capacity. If funds are generated from the sale of items made by unaccompanied alien children in the program they must be provided to the unaccompanied alien child upon release from the facility. These funds may not be used to supplement the facility’s program. If care providers plan to regularly sell items made by unaccompanied alien children, they must have written standardized procedures for the sale, accounting, and dispensing of funds to unaccompanied alien children upon release.
Unaccompanied alien children entering ORR custody come from a wide array of cultures, practices, languages, and beliefs. Care providers must have the cultural awareness and systems in place to support the cultural identity and needs of each unaccompanied alien child.
ORR requires care providers to respect and support the cultural identity of unaccompanied alien children by:
- Allowing unaccompanied alien children regular contact with safe family members or other support systems through telephone calls, letters and visits.
- Addressing the unaccompanied alien child by his or her given name.
- Inclusion of cultural awareness in daily activities, such as food menus, choice of clothing, and hygiene routines.
- Celebration of culture-specific events and holidays.
- Academic education that covers various cultures within a classroom setting.
Care providers must make every effort possible to provide comprehensive services and literature in the native language of each unaccompanied alien child; provide on-site staff or interpreters as needed; and allow unaccompanied alien children to communicate in their preferred language when they choose. All ORR-required documents provided to unaccompanied alien children must be translated in the unaccompanied alien child’s preferred language, either written or verbally. Translation services should be used when no written translation (assuming the child is literate) or on-site staff or interpreters are available.
Care providers must provide opportunities for unaccompanied alien children to observe and practice their spiritual or religious beliefs, including but not limited to, the celebration of religious holidays, displaying religious art, wearing religious articles of jewelry, following certain food preparation and/or dietary restrictions and attending services and activities (as long as it is safe for the unaccompanied alien child and staff). Care providers are encouraged to work with clergy or other members of the religious community to provide spiritual/religious services to unaccompanied alien children in ORR’s custody. Care providers must provide access to recognized members and leaders of religious communities to ORR care provider facilities in accordance with safety policies and procedures. Upon request from an unaccompanied alien child, assuming that the request is reasonable and the safety of the unaccompanied alien child and staff is not adversely impacted, care providers must transport unaccompanied alien children to places of worship.
If an unaccompanied alien child requests religious information or other religious items, such as books or clothing, the care provider must provide the applicable materials in the unaccompanied alien child’s native language, as long as the request is reasonable.
Care provider services also help unaccompanied alien children obtain the skills necessary to acculturate to the United States and to live independently and responsibly. Acculturation services include:
- Providing English language classes
- Access to community services
- Academic education, including, for example, geography
- Celebration of U.S. holidays
- Discussion of US. laws
- Food and entertainment
- Field trips to local historical, scientific or cultural points of interest
Care providers must develop recreation and leisure plans that include daily outdoor activities, weather permitting, for unaccompanied alien children in their care. The plan includes at least one hour per day of large muscle activity and one hour per day of structured leisure time activities other than television (three hours per day on weekends or holidays).
Recreation and leisure time activities are separate from the required physical educational requirement.
Care providers that do not have sufficient on-site recreation areas must take unaccompanied alien children to off-site parks, community recreation centers or other suitable locations and provide a higher staff-to-child ratio in those instances.
Care providers must screen television, movies, and video games for appropriateness before being provided to unaccompanied alien children and these may not be substituted for recreational or leisure activities. (Television viewing limitations and other related policies vary from facility to facility.)
Care providers must provide nutritional services in accordance with U.S. Department of Agriculture and U.S. Department of Health and Human Services nutritional guidelines and State licensing requirements. They also must establish procedures to accommodate dietary restrictions, food allergies, health issues, and religious or spiritual requirements.
Care providers must ensure the privacy and safety of all unaccompanied alien children by having internal policies and procedures for telephone calls, such as verifying the identity of telephone callers and the recipient of outgoing telephone calls. Unaccompanied alien children must be provided the opportunity to make a minimum of two telephone calls per week (10 minutes each) to family members and/or sponsors, in a private setting.
Unaccompanied alien children are allowed to call both family members and sponsors living in the United States and abroad. Attorneys representing unaccompanied alien children have unlimited telephone access to unaccompanied alien children and the child or youth may speak to other appropriate stakeholders, such as their consulate, the case coordinator, or child advocate.
Care providers must create a list of approved and prohibited persons that an unaccompanied alien child may contact and may only prohibit telephone calls if they can document valid reasons for concern (for example, suspected smuggler or trafficker or past trauma with a particular individual). Care providers encourage visitation between unaccompanied alien children and family members (unless there is a documented reason to believe there is a safety concern) and have policies in place to ensure safety and privacy of unaccompanied alien children and staff. Care provider policies include those that ensure that the UAC and care provider staff are safe and that the unaccompanied alien child may communicate with the visitor in private. Care providers must have an alternative public place for visits. Visitation must be supervised by staff in a way that ensures safety but respects the unaccompanied alien child’s privacy and reasonably prevents the unauthorized absence of the child or youth.
Potential sponsors may only visit with the approved child, not with other unaccompanied alien children in the facility. Prior to any visitation, all visitors must be informed of visiting hours and the circumstances that could result in the termination of the visit. Visitors must provide their name, address, and relationship to the unaccompanied alien child they are visiting. All visitors must present acceptable government-issued photo identification upon entry.
Care providers also ensure that all mail, letters, packages, baggage and any other items delivered to the care provider and addressed to the unaccompanied alien child are promptly delivered to the unaccompanied alien child and that children and youth have access to postage and if possible to email in order to send letters to family members, sponsors, legal representatives, and others. (Care providers must confirm the identity of the sender prior to release of the mail.)
If there is reason to believe that contraband is included in a package or the mailed item presents a safety issue, the unaccompanied alien child must be required to open the item in the presence of a care provider staff member who may conduct an inspection. If there is reason to believe it would be dangerous for the unaccompanied alien child to open an item, the care provider must call the appropriate authorities to properly handle suspicious packages.
Care providers must provide new clothing and footwear, items for personal hygiene, grooming, and hair as deemed appropriate and needed.
If the child arrives at the care provider facility with appropriate clothing the UAC will be allowed to wear it. Care providers will not use footwear as a means to control behavior.
Care providers also ensure that unaccompanied alien children have the appropriate time, space, and items for personal grooming and hygiene. Shaving facial hair may not be required if it violates the unaccompanied alien child’s cultural norms, religious beliefs, or personal preferences, and head scarves may be worn for religious reasons.
Care providers must have standardized policies and procedures regarding gang-related symbols and tattoos. While the unaccompanied alien child is in the custody of ORR, care providers must ensure that any gang-related symbols, tattoos, accessories, or paraphernalia on an unaccompanied alien child are covered or confiscated.
Care providers may assign individual chores to unaccompanied alien children to teach them responsibility for their own living environment, but unaccompanied alien children may not be required to clean areas they do not occupy or use, such as administrative offices. Care providers must have written policies and procedures regarding chores, chore assignments, and schedules.
Behavior management strategies used by the care provider must meet child welfare best practice standards. ORR approves care provider written policies and procedures for behavior management, including rules for the program, rewards and consequences for behavior.
Care providers are required to provide the following transportation services:3
- Individual transfers from one ORR care provider to another
- Group transfers due to an emergency situation or an influx
- ORR requests for special initial placements
- Local services and appointments, such as medical and dental appointments, immigration court hearings, or community services as part of the individual service plan
- Release of unaccompanied alien children to sponsors who are not able to pick up the unaccompanied alien child, as approved by ORR
The care provider must comply with all local licensing requirements and State and Federal regulations, such as meeting or exceeding the minimum staff/child ratio required by the care provider’s licensing agency, maintaining and inspecting all vehicles used for transportation, etc.
Unaccompanied alien children must be transported in a manner that is appropriate to the child’s physical and mental needs, including the proper use of car seats for young children.
To the greatest extent possible under the circumstances, when transporting unaccompanied alien children care providers will assign transport staff of the same gender as the child or youth.
NOTE: Sexual abuse and sexual harassment-related issues are addressed in separate policies implementing the interim final rule on standards to prevent, detect, and respond to sexual abuse and sexual harassment. See Section 4: Preventing, Detecting, and Responding to Sexual Abuse and Harassment.
3.3.15 Use of Restraints or Seclusion in Emergency Safety Situations In Residential Treatment Centers (RTCs)
Restraints or seclusion should only be used in limited situations in which an unaccompanied alien child presents a risk of imminent physical harm to themselves or others, unless the use of restraints or seclusion is prohibited by State law. Restraints or seclusion should be a last resort and must be terminated as soon as the physical safety of the child and others can be ensured. This policy applies only to emergency safety situations in residential treatment centers.
Emergency Safety Situations
An emergency safety situation is a situation in which an unaccompanied alien child presents a risk of imminent physical harm to themselves or others as demonstrated by overt acts or expressed threats.
Restraints and Seclusion
Restraints may include:
- A personal restraint, which is 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 him or her.
- A drug when it is administered to manage the child's behavior in a way that (1) reduces the safety risk to the child or others; (2) modifies their behavior; and is (3) not a standard treatment for the child's condition.4
Seclusion is the involuntary confinement of a child alone in a room or area from which the child is physically prevented from leaving.5
Use of Restraints During an Emergency Safety Situation6
Restraints or seclusion may only be used to ensure the immediate physical safety of the child and others during an emergency safety situation. Restraints or seclusion may never be used as a means of coercion, discipline, convenience, or retaliation by staff.
Restraints or seclusion should be a last resort and used only when less restrictive interventions prove ineffective in ensuring the immediate physical safety of the child and others. The use of restraints or seclusion must be performed in a manner that is safe, proportionate, and appropriate to the severity of the behavior and the child’s chronological and developmental age; size; gender; physical, medical, and psychiatric condition; and personal history.
The use and implementation of restraints or seclusion must be in accordance with State law and licensing requirements.7 If ORR providers have any questions about this guidance in relation to their State law, they should contact their Project Officer.
The use of restraints or seclusion must terminate when the emergency safety situation has ended and the physical safety of the child and others can be ensured.
Types of Restraints Used During an Emergency Safety Situation
The type or technique of restraint or seclusion used must be the least restrictive intervention that will be effective to protect the unaccompanied alien child and others from immediate physical harm.
ORR does not authorize the use of mechanical restraints. A mechanical restraint is any device attached or adjacent to the child’s body that he or she cannot easily remove that restricts freedom of movement or normal access to his or her body.8
Staff must provide the child with an opportunity to discuss the emergency safety situation no later than 48 hours after the child’s release from restraints or seclusion. The discussion must be held in private as soon as possible and should include the staff involved. Additionally, the supervisor(s) of the staff involved in the emergency safety situation must review the use of restraints or seclusion within 72 hours of their use.
Reporting the Use of Restraints or Seclusion
Staff must report the use of restraints or seclusion during an emergency safety situation within 24 hours. The report must include a description of the circumstances that created the basis for the use of restraint or seclusion and a description of the restraint, including the length of time used. Additionally, the report must document the interventions used by staff prior to the use of restraints or seclusion.
Restraints and Seclusion Prevention Strategies
Restraints and seclusion are largely preventable, costly and traumatizing practices for children and staff that can impede the therapeutic alliance, and foster a culture of distrust and violence. For children who have experienced traumatic events, the use of restraints and seclusion often replicates the experience of abuse and poses a barrier to healing and recovery. Therefore, every effort should be made to prevent the need for use of restraints and seclusion.
Effective strategies include the following:
- Workforce development: Workforce training on trauma and its impact on the developing brain and behavior can help staff understand and address the underlying cause or reason for unsafe behavior, recognize the signs of trauma before immediate safety concerns arise, and provide non-aversive interventions, such as sensory regulation, positive behavioral interventions and supports, crisis prevention, and culturally responsive de-escalation techniques to prevent the need for use of restraints or seclusion.
- Organizational leadership support: There are a number of steps that organizations can take to support a prevention first approach to the use of restraints and seclusion. These include incorporating an understanding of the prevalence and impact of trauma, as well as the complex paths to healing and recovery, into all aspects of service delivery; reviewing agency policies, procedures and practices to ensure that the organizational culture emphasizes non-coercive, trauma-informed approaches promoting safety and respect; using data to inform practice; and incorporating prevention tools, such as crisis plans, comfort rooms, and sensory tools.
How can an ORR provider learn more about alternatives to restraints and seclusion?
The Substance Abuse and Mental Health Services Administration’s (SAMHSA) National Center for Trauma-Informed Care and Alternatives to Seclusion and Restraint (www.samhsa.gov Visit disclaimer page ) is a technical assistance center dedicated to promoting alternatives to seclusion and restraint, and building the knowledge base on the implementation of trauma-informed approaches in programs, services, and systems.
To appropriately respond to the death of an unaccompanied alien child in the care and custody of ORR, ORR and its care providers must immediately report the death to appropriate Federal, State, and local authorities. ORR must also notify the child or youth’s parent, legal guardian, or next-of-kin; attorney; Congressional officials, and consulate officials of the death.
If an investigation is conducted, both ORR and care providers must follow-up with all investigations in order to remain informed of the progress and results of any investigation. Once ORR receives the results of any investigation, ORR will inform the unaccompanied alien child’s parents, legal guardian, or next-of-kin of the results in a timely manner.
Reporting to Local Authorities and ORR
To whom must the care provider immediately report a UAC death?
The care provider must immediately report the death to:
- Local law enforcement, as appropriate;
- The care provider’s State or local licensing authority;
- Child Protective Services, as applicable; and
- ORR via a Significant Incident Report.
Notification and Reporting within the US Department of Health and Human Services (HHS)
Who must ORR immediately notify after receiving a report of a UAC death?
ORR must immediately notify the appropriate staff in ORR, ACF and HHS.
Notifications to External Parties
Who must ORR notify within 24 hours of an unaccompanied alien child’s death?
ORR must notify:
- The unaccompanied alien child’s parent, legal guardian, or next-of-kin;
- The unaccompanied alien child’s attorney of record or the care provider’s local legal service provider;
- The applicable consulate;
- The child advocate, if applicable;
- Congressional officials
- The local U.S. Immigrations and Customs Enforcement (ICE), Field Office Juvenile Coordinator (FOJC); and
- The Department of Homeland Security, ICE, Enforcement and Removal Operations, Juvenile and Family Residential Management Unit (ERO/JFRMU).
Method of Notification
How must care providers and ORR make notifications?
Care providers and ORR must make all notifications telephonically and follow-up within 24 hours with a written notification that includes documentation of the initial telephonic notification. Notifications must be provided in a language the recipient can understand. ORR must utilize translation services as appropriate when making notifications to individuals who may not understand or read English. All reports, notifications, and acknowledgements of receipt (if possible) must be documented and maintained in the unaccompanied alien child’s case file.
Notifications to Congress
Upon certification by medical doctor of a UAC’s death from an ORR care provider, ORR notifies Congressional points of contact within 24 hours of the reported death. However, if ORR has been unable to reach the child’s next of kin, HHS notifies Congressional points of contact, but withholds the deceased child’s name until after notifications are made to the child’s next of kin.
Ongoing Reporting and Follow-Up
Are there ongoing reporting requirements?
Yes, both ORR and care providers must make reasonable efforts to remain informed of the progress and results of any investigation and post-mortem medical examination. ORR will timely inform the decedent’s parents, legal guardian, or next-of-kin of the results of any investigations, examinations, and reports. ORR will provide the final investigation results, if applicable, and the original death certificate to the UAC’s parents, legal guardian, or next-of-kin. The care provider must maintain a copy of the death certificate and any reports in the UAC’s case file.
Will ORR internally review the care provider who had physical custody of the decedent at the time of the death?
Yes, ORR will review all investigation results, the decedent’s case file and records, and any other available information. ORR will determine whether ORR policies and procedures were properly followed and whether the care provider appropriately responded to any related issues that arose prior to the death and to the death itself.
Physical restraints are devices used to physically restrict the movement of an individual at the hands, wrists, ankles, feet, waist or elsewhere on the body. ORR only allows the use of soft restraints (e.g., zip ties and leg or ankle weights) during transport when a child poses a serious risk of physical harm to self or others or a serious risk of escape from ORR custody.
Any situation involving transportation of an unaccompanied alien child to or from a secure care facility must be completed by appropriately trained care provider staff or an agency experienced in secure transportation of minors. Transportation staff must be trained in conflict resolution without the use of physical restraints, the safe and effective use of approved soft restraints, and the emergency use of safe and approved physical restraints during an emergency response.
When care providers (or transport agencies) use soft restraints when transporting an unaccompanied alien child, they must take into account the child’s medical and/or mental health issues. If the care provider (or transport agency) believes the child cannot be transported safely in soft restraints to a non-emergency appointment or hearing due to the existing serious risk of violence or escape, the ORR/FFS and the secure care provider must work with the appropriate parties to schedule a new appointment or hearing for the child at a later date. In the event of a medical emergency, the care provider must safely and appropriately transport the child to the emergency room for evaluation using soft restraints or must contact 9-1-1 for crisis response and transportation to the nearest emergency room.
Care providers that provide secure transport must submit to their designated ORR Project Officer the program’s internal written policies and procedures concerning secure transportation services.
Care providers must document all instances of the use of restraints in transportation logs.
Generally, care providers must not restrain children during immigration court proceedings or asylum interviews. However, restraints may be used in the following instances:
- During transport to immigration court or an asylum interview under the guidelines at section 3.3.17.
- While at the immigration court or the asylum interview if the unaccompanied alien child exhibits imminent escape behavior, makes violent threats, or demonstrates violent behavior.
- While at the immigration court or asylum interview if the secure care provider and ORR have made an individualized determination that the unaccompanied alien child poses a serious risk of violence or escape if the child is unrestrained in court or the interview.
Notification of the Use of Restraints
If a secure care provider restrains a child during his/her hearing or interview because of events that occur during the hearing or interview, the care provider must notify the ORR/FFS through the SIR process and detail the reasons for applying the soft restraints.
If a care provider believes a child will need to be restrained at a future court appearance or interview, the care provider must notify the child and his/her attorney or legal service provider and the ORR/FFS. The care provider and the ORR/FFS must work with the attorney or legal service provider and DOJ or DHS to request a later court hearing or asylum interview. The child or his/her attorney or legal service provider may also request to have the soft restraints removed if the child or his/her attorney or legal service provider believes that there are medical, physical, or psychological reasons that would prevent the safe and humane application of soft restraints. The child or his/her attorney or legal service provider should make the request in writing to the ORR/FFS as soon as practicable before the next hearing or interview. At the time of this request, ORR and the secure care provider will conduct an individualized assessment to determine if the child poses a serious risk of violence or escape.
Eligible UAC who have a scheduled Saravia hearing have the option of attending their Saravia hearing in the jurisdiction where they were apprehended, the jurisdiction or their residence (before arrest), or at an immigration court close to their current ORR placement and can attend any preliminary hearings via video teleconference (VTC). However, they must attend the final Saravia hearing in person. Note that ORR is responsible for providing access to VTC technology.
If the UAC opts to transfer their Saravia hearing to an immigration court close to their current ORR placement, the care provider program should notify the assigned ORR/Federal Field Specialist and the child’s attorney within 24 hours of said decision. Prompt notification is required as any Change of Venue form must be filed within five (5) days of receiving notice of the upcoming Saravia hearing.
In addition, ORR must provide all transportation accommodations for Saravia hearings in accordance with its transportation policies and procedures (See Section 3.3.14 Transportation Services).
ORR facilitates and funds health care for all unaccompanied alien children in its custody. ORR has developed its health care policies with the goals of ensuring the children’s physical and mental well-being and the safety of care providers, medical personnel and communities. Through its care providers and other health care professionals, ORR provides the following services:
- Routine medical and dental care
- Family planning services, including pregnancy tests and comprehensive information about and access to medical reproductive health services and emergency contraception
- Emergency health services
- A complete medical examination (including screening for infectious diseases) within 48 hours of admission (excluding weekends and holidays and unless the youth was recently examined at another facility)
- Administration of prescribed medications and special diets
- Appropriate mental health interventions
Care providers must deliver services in a standardized manner that is sensitive to the age, culture, native language, and needs of each unaccompanied alien child. Care providers also must meet State and local licensing and public health requirements.
Health care eligibility is effective on the first day that a child has been placed in the physical custody of ORR. Eligibility for ORR coverage ends on the day the child leaves ORR’s custody.
Care providers create collaborative partnerships with medical professionals and organizations to ensure children have access to medical care. To ensure quality care, ORR requires licensed medical practitioners (physicians, physician assistants, nurse practitioners) acting within their scope of practice to provide or supervise all medical evaluation and management. In addition, a licensed mental health professional must deliver mental health services. Any hospital providing services to unaccompanied alien children must be accredited by the Joint Commission or other nationally recognized accrediting body.
Each unaccompanied alien child must receive an initial general medical examination within 48 business hours of admission. The purposes of the initial examination are to assess general health, administer complete immunizations in keeping with U.S. standards, find out about health conditions that require further attention, and detect contagious diseases, such as influenza or tuberculosis. Care providers must ensure that healthcare professionals are following ORR’s latest medical guidance and reporting the findings on ORR forms. Payment for the initial examination is pre-approved.
Care providers have a responsibility to initiate health care services when they observe children in need of medical attention. As important as observing a child’s need for medical care is creating an atmosphere that allows a child to request care. Therefore, care providers must have policies and procedures for unaccompanied alien children to convey written and verbal requests for emergency and non-emergency health care services. Children who have language and literacy barriers also must have the opportunity to communicate their needs. All requests from a child must be documented and maintained in the child’s medical case file. Care providers must respond to non-emergency requests within 24 to 48 hours, excluding weekends and holidays. To the best of their ability, care provider staff should address questions and concerns from unaccompanied alien children regarding current or past medical care.
Care providers must 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 alien children, secure storage of medications, and controlled administration and disposal of all drugs.
- Locking cabinets, closets, and refrigeration units.
- Recording all prescribed medications in the child’s file.
- Training all staff or foster parents who dispense medications in the “Five Rights of Medication Administration” (right recipient, right medication, right dose, right time, and right route of administration).
- Confirming that the child has ingested the medication.
- Documenting that prescribed or over-the-counter medications have or have not been administered (by whom, and if not, for what reason, including the date, time of administration, name of medication, and dosage).
- Prohibiting one child to deliver medications to another.
- Disallowing an unaccompanied alien child’s self-administration of medications, either orally or topically, outside the presence of a staff member.
A licensed health care provider (a nurse, physician, physician’s assistance, nurse practitioner) must write or verbally order all nonprescription medications. Verbal orders must be documented in the child’s file.
All medical emergencies must be immediately addressed. A medical emergency is a serious medical condition caused by injury, illness, or toxic exposure that is life threatening in nature. In other words, if a child does not receive immediate medical attention his or her medical condition is likely to worsen and result in damage to vital body functions or death.
Care provider staff must follow these steps in the event of a medical emergency.
- Contact 9-1-1 and arrange for transportation for the child to the nearest emergency room (ER) for evaluation.
- Render first aid as necessary until 9-1-1 responders arrive on the scene. Staff providing CPR should use a mouthpiece or do hand-only CPR.
- Employ Standard Precautions (use of protection barriers, such as gloves, gowns, aprons, masks or protective eyewear) to reduce the risk of exposure to potentially infectious materials.
- Notify the care provider’s Program Director immediately and the actions employed.
- Submit an SIR to ORR within 4 hours of ER visit.
- If hospitalization is recommended by the ER physician, contact the unaccompanied alien child on a daily basis by telephone and visitation.
- Provide ORR with regular updates on the child’s health status and progress.
- If hospitalization is not required, obtain medical records or documentation verifying that the child is stable enough for release to the care provider (for example, written doctor authorization or order, discharge instructions recommending release to the program with follow-up care).
- Discuss the case with the care provider’s case management and clinical staff. Evaluate whether the care provider can meet the child’s medical needs. Review the ER or hospital discharge plan and implement treatment recommendation.
- Request medical records related to the emergency treatment and any inpatient treatment from the medical services provider.
- Maintain records in the child’s health files.
From intake to release, care providers must observe all children for signs or symptoms of communicable diseases and act accordingly to protect others against possible infection.
Facilities must be aware of the list of notifiable diseases in their States. Each facility must have policies and procedures for identifying, reporting, and controlling communicable diseases that are consistent with State and local laws and regulations. Further, each facility must inform ORR about each suspected or confirmed case and follow ORR medical guidance on managing cases and contacts, which is prepared and disseminated to care providers by the ORR/Medical Services Team. ORR has protocols for diseases of public health concern that have been diagnosed in unaccompanied alien children, including varicella and tuberculosis. The care provider is responsible for training all staff about its current communicable disease plan.
Care providers must have an identified space within the shelter facility that may be used for quarantine or isolation in the event that an unaccompanied alien child must be separated from the general population for a medical reason. The space must be suitable to house a child for days or weeks.
Unaccompanied alien children must be admitted to a hospital if clinically indicated, if public health needs require it, or if isolation at the facility cannot be achieved safely and effectively. An unaccompanied alien child’s refusal of treatment that puts others at risk for spread of the disease is considered a public health justification for isolation.
Facilities must provide regular updates to ORR regarding the mental and physical health of children in isolation. Children should continue to receive tailored services (educational, recreational, social, and legal services) when feasible.
Care providers are responsible for procuring and maintaining records of health care services received by unaccompanied alien children while in their care. Care providers must request records for all office visits (medical, dental, mental health), hospitalizations, radiology and lab results, and procedures.
Care providers must maintain the children’s individual health files separately from the children’s case files, unless State licensing requirements dictate otherwise. In addition, care providers must report health information to ORR as directed and retrieve records upon ORR’s request, even after a child’s release. Upon an unaccompanied alien child’s transfer to another ORR program, care providers must transfer with the child all medical, dental, and mental health records. Upon release from ORR custody, unaccompanied alien children are entitled to receive copies of their health records. At a minimum, all children at release must receive:
- Initial medical screening documentation;
- Immunization records; and
- Lab test results or radiograph readings.
Also upon release, unaccompanied alien children who have been hospitalized for any medical or mental health issues must receive copies of their relevant health records, including hospitalization admission note and discharge summary.9
The care provider must have written policies, procedures, and practices that protect the confidentiality of medical information. To safeguard children’s privacy, care providers must use discretion when communicating with an unaccompanied alien child about medical appointments in the presence of others. Care provider staff also must dispense medication in a private location. Similarly, medical disclosure to staff about a child’s health condition should be determined by the Program Director on a need-to-know basis.
Unaccompanied alien children who have serious physical or mental health issues or have had exposure to a communicable disease may not be transferred or moved until they have been medically cleared by a physician or ORR is consulted. Pregnant unaccompanied alien children should be medically cleared for travel by plane if required by the air carrier (generally, after 36 weeks of pregnancy) or if they delivered within the past 7 days. Children with medical needs must have follow-up services or other arrangements in place prior to their discharge.
Unaccompanied alien children who need to remain on prescription medication must receive a minimum of a 30 day supply of medication, or the remainder of their medication if on a time-limited course, prior to transfer or release. The unaccompanied alien child and the accepting care provider (in the case of a transfer) or a sponsor (in the case of release) must be instructed in the proper administration of medications. Care providers may not release unaccompanied alien children with any narcotic medications. As part of release planning, if an unaccompanied alien child is on any chronic psychotropic medications, the care provider must address the unaccompanied alien child’s situation, including likelihood of maintaining medications upon release from ORR custody, with the prescribing psychiatrist to determine if medications should be continued or if a period of weaning off the medication is required before release.
Children who are infectious with communicable diseases of public health concern, which have potential to cause outbreaks, will not be released from ORR care until they are non-infectious. However, if an infectious child must be moved internally within a facility, to another facility, or to the hospital, care providers and others having interaction with the child must follow Standard Precautions, depending on the mode of disease transmission (e.g., surgical mask should be worn by children with diseases spread by the respiratory route). The care provider must provide the medical, dental, and mental health records to the unaccompanied alien child upon release or to the accepting care provider in the event of a transfer.
Reimbursement of health care claims for services for children in ORR custody is paid to vendors through the Veterans Administration (VA) Financial Services Center. Reimbursement for medical and mental health services is at the Medicare or lower rate. Only ORR may approve a reimbursement rate higher than the Medicare rate, which must be negotiated prior to the provision of services and only granted in extenuating circumstances. It is not necessary for providers serving unaccompanied alien children to be Medicare participating physicians.
As of September 1, 2013, ORR no longer reimburses care providers and medical providers for transportation costs associated with mobile medical providers. Transportation for services, including but not limited to medical, radiology, laboratory, and dental services, are at the care provider’s expense. Programs should take transportation fees into consideration when contracting with mobile medical providers.
Treatment authorization requests for office visits (primary care, specialty consultations, mental health, and dental care), laboratory tests, surgeries and procedures, physical therapy, and other specialized health treatments must be pre-approved before non-emergency services are rendered. Considering the high turnover and short term stay of most unaccompanied alien children in ORR custody, some services are not appropriate (e.g., cosmetic treatment, medical consultations for minor health concerns where safe and effective home remedies exist, specialty consultation for a stable condition that cannot be resolved before discharge and will not affect treatment or care while in custody, etc.) Care providers must follow ORR medical guidance, which is prepared and disseminated to care providers by the ORR/Medical Services Team.
All children and youth in ORR care are entitled to human rights protections and freedom from discrimination and abuse. Care providers must ensure that children who are lesbian, gay, bisexual, transgender, questioning, or intersex (LGBTQI) are fairly treated and served during their time in ORR custody.
ORR requires care providers to operate their programs following the guiding principles below. Care providers must ensure that LGBTQI children and youth:
- are treated with the same dignity and respect as other unaccompanied alien children
- receive recognition of sexual orientation and/or gender identity
- are not discriminated against or harassed based on actual or perceived sexual orientation or gender identity
- are cared for in an inclusive and respectful environment
Care providers must:
- maintain the privacy and confidentiality of information concerning sexual orientation and gender identity
- use correct names and pronouns in accordance with the youth’s gender identity
- house LGBTQI youth according to an assessment of the youth’s gender identity and housing preference, health and safety needs, and State and local licensing standards
- offer an individualized assessment to determine whether additional or alternate restroom accommodations should be provided
- allow LGBTQI youth to dress and express themselves according to their gender identity
- allow LGBTQI youth to choose the gender of staff to conduct a pat-down search if one is necessary
More details about the protections of LGBTQI children can be found below and in Section 4 of this guide.
LGBTQI children have the right to be free from discrimination and harassment based on actual or perceived sexual orientation or gender identity. More specifically, care providers may not label a child or youth as a likely abuser or punish a child for his or her sexual orientation, gender identity, or gender expression. All children and youth must be treated fairly and equally and provided with inclusive, safe, and nondiscriminatory services.
Care providers must be responsive to the needs of LGBTQI children and youth in an inclusive and respectful environment. Care providers may not isolate or involuntarily segregate children solely because of their sexual orientation, gender identity, or gender expression. In addition, one-on-one supervision may only be utilized in exigent circumstances.
As noted above, the privacy and confidentiality of youth with regard to sexual orientation and gender identify must be protected. Care providers must ensure that information about sexual orientation and gender identity is kept confidential and is only shared when disclosure is necessary for medical or mental health treatment or the youth requests the information be shared for a particular purpose. As with all information gathered during the course of service provision, care providers must implement appropriate controls on information dissemination within the care provider facility in order to ensure that sensitive information is not exploited to any youth’s detriment by staff or other unaccompanied alien children.
When making housing assignments for a transgender or intersex youth, the care provider must consider the youth’s gender self-identification and the effects of a housing assignment on the youth’s health and safety. Care providers must not base housing assignment decisions of transgender or intersex youth solely on the identity documents or physical anatomy of the youth. The child’s self-identification of his or her gender and self-assessment of safety needs must always be taken into consideration as well. The care provider’s housing assignment of a transgender or intersex child must be consistent with the safety and security considerations of the care provider facility and State and local licensing standards. If State and local licensing standards conflict with the care provider’s determination for a youth’s housing assignment, the care provider should immediately contact the ORR/FFS for further guidance.
If a youth expresses safety or privacy concerns or the care provider otherwise becomes aware of privacy or safety concerns related to restrooms or dressing areas, the care provider must take reasonable steps to address those concerns. This may include, for example: the addition of a privacy curtain or partition; provision to use a nearby restroom or office; or a separate changing schedule. The care provider should contact the ORR/FFS for further guidance if the care provider is uncertain about the appropriate steps to take.
ORR provides long term foster care placements for certain children who meet the requirements under section 1.2.6 Long Term ORR Foster Care. ORR long term foster care is defined as an ORR-funded and administered family placement in a community based setting. Children placed into ORR long term foster care remain in the care and custody of ORR. ORR long term foster care programs are not State funded and are not part of the State child welfare system. However, ORR long term foster care families are licensed by the State to serve as foster families, and as such, adhere to standards of care as outlined by the State licensed child placement agency, State licensing regulations, and any ORR policies related to long term foster care. Foster care providers must comply with all applicable State child welfare laws and regulations and all State and local building, fire, health and safety codes. Foster care providers must deliver services in a manner that is sensitive to the age, culture, native language, sexual orientation and special needs of each child. The child attends community based school and receives on-going case management and counseling services, as well as other services as needed.
In ORR long term foster care placements, long term foster care providers must offer every child the following services:
- A comprehensive program orientation
- Case management services
- Educational services in a community based school
- Weekly individual counseling sessions
- Legal services and representation , as applicable
- Individualized Safety Plans
- Services related to culture, language, and religious observation
- Recreation and Leisure Time Services
- Acculturation and Adaptation services
- Telephone Calls, Visitation, and Mail
- Opportunities for vocational education and independent Living
For information regarding transfers into ORR long term foster care, please see section 1.2.6 ORR Long Term Foster Care.
For information about monitoring of ORR long term foster care programs please see section 5.5.3 Foster Care Monitoring.
Foster care providers must make every effort to place and keep children in the least restrictive setting. Foster care provider facilities must provide support services and appropriate interventions, when necessary, to help keep a child in the placement. A change of placement from long term foster care to a more restrictive setting or a more therapeutic setting may be considered after reasonable efforts have first been made to provide additional services or manage the child’s behavior in order to maintain the current placement. If it is determined that a child requires transfer into a more restrictive placement, please see section 1.2 ORR Standards for Placement and Transfer Decisions. For placements into an RTC please see section 1.4.6 Residential Treatment Center Placements.
Is release to a sponsor possible after a transfer to ORR long term foster care?
Yes. In the event that a sponsor is identified after a transfer to ORR long term foster care has occurred, the sponsorship process must be pursued. Case managers must be continually assessing cases for potential sponsors in long term foster care. Please refer to Section 2 Safe and Timely Release from ORR Care for further information.
1. The Flores Settlement Agreement also specifies what care provider may NOT do when meeting minimum service requirements. These include: Unaccompanied alien children shall not be subjected to corporal punishment, humiliation, mental abuse, or punitive interferences with the daily functions of living, such as eating or sleeping. Any sanctions employed by the care provider must not adversely affect either the health or physical or psychological well-being of the child or youth or deny the child or youth regular meals, sufficient sleep, exercise, medical care, correspondence privileges, or legal assistance.
3. ORR transportation requirements are based on standards cited in “Caring for Our Children: National Health and Safety Performance Standards for Out-of-Home Child Care Programs”, 2nd Ed., released by the American Academy of Pediatrics, American Public Health Association and the National Resource Center for Health and Safety in Child Care.
6. The Children Health Act of 2000, (42 USC §290ii et seq.) imposed procedural reporting and training requirements regarding the use of restraints and involuntary seclusion in facilities that receive Medicaid and Medicare funding, specifically including facilities that provide inpatient psychiatric services for children under the age of 21 years. The Centers for Medicare & Medicaid Services (CMS) issued regulations implementing these requirements at 42 CFR 483, Subpart G, which establishes the federal minimum standard for restraints and seclusion in these facilities. The language in this document parallels the CMS restraints and seclusion standard.
7. Some States prohibit the use of restraints and seclusion. States may also prohibit the use of certain types of restraints (such as chemical restraints) or impose limitations on the implementation of restraints or seclusion, such as specific time limits or requirements for a written order by licensed physicians.