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Children Entering the United States Unaccompanied: Section 4

Preventing, Detecting, and Responding to Sexual Abuse and Harassment

Published: November 16, 2015
Categories:
Unaccompanied Children's Services

4.1 Definitions

Posted 2/5/18


4.1.1 Sexual Abuse

For the purposes of Section 4, sexual abuse is defined at 34 U.S.C. § 20341 and in ORR regulations at 45 C.F.R. 411.6.  Sexual abuse includes different acts depending on whether the perpetrator is a minor or an adult.

Sexual abuse of a minor by another MINOR includes the following acts:

  1. The employment, use, persuasion, inducement, enticement, or coercion of a child to engage in, or assist another person to engage in, (2) or (3) below or the rape, molestation, prostitution, or other form of sexual exploitation of children, or incest with children;
  2. Actual or simulated sexual intercourse, including sexual contact in the manner of genital-genital, oral-genital, anal-genital, or oral-anal contact, whether between persons of the same or opposite sex;
  3. Intentional touching, either directly or through the clothing, of the genitalia, anus, groin, breast, inner thigh, or the buttocks of another person, excluding contact incidental to a physical altercation;
  4. Penetration of the anal or genital opening of another person, however slight, by a hand, finger, object, or other instrument;
  5. Bestiality;
  6. Masturbation;
  7. Lascivious exhibition of the genitals or pubic area of a person or animal;
  8. Sadistic or masochistic abuse; or
  9. Child pornography or child prostitution.

Sexual abuse of a minor by an ADULT includes the following acts:

  1. The employment, use, persuasion, inducement, enticement, or coercion of a child to engage in, or assist another person to engage in, (2) or (3) below or the rape, molestation, prostitution, or other form of sexual exploitation of children, or incest with children;
  2. Actual or simulated sexual intercourse, including sexual contact in the manner of genital-genital, oral-genital, anal-genital, or oral-anal contact, whether between persons of the same or opposite sex;
  3. Intentional touching, either directly or through the clothing, of the genitalia, anus, groin, breast, inner thigh, or the buttocks that is unrelated to official duties or where the staff member, grantee, contractor, or volunteer has the intent to abuse, arouse, or gratify sexual desire;
  4. Contact between the mouth and any body part where the staff member, grantee, contractor, or volunteer has the intent to abuse, arouse, or gratify sexual desire;
  5. Penetration of the anal or genital opening of another person, however slight, by a hand, finger, object, or other instrument that is unrelated to official duties or where the staff member, grantee, contractor, or volunteer has the intent to abuse, arouse, or gratify sexual desire;
  6. Any attempt, threat, or request by a staff member, grantee, contractor, or volunteer to engage in activities (1) through (5) above;
  7. Any display by a staff member, grantee, contractor, or volunteer of his or her uncovered buttocks or breast in the presence of a child;
  8. Bestiality;
  9. Masturbation;
  10. Lascivious exhibition of the genitals or pubic area of a person or animal;
  11. Sadistic or masochistic abuse;
  12. Child pornography or child prostitution; or
  13. Voyeurism by a staff member, grantee, contractor, or volunteer (See definition below).

Posted 2/5/18

4.1.2 Voyeurism

Voyeurism is an invasion of privacy of a child by a staff member, grantee, contractor, or volunteer for reasons unrelated to official duties. Examples include inappropriately viewing a child perform bodily functions or bathing; or requiring a child to expose his or her buttocks, genitals, or breasts; or recording images of all or part of a child’s naked body or part of a child performing bodily functions.

Posted 2/5/18

4.1.3 Sexual Harassment

Sexual harassment is defined in ORR regulations at 45 C.F.R. 411.6.  Sexual harassment includes different acts depending on whether the perpetrator is a minor or an adult.

Sexual harassment of a minor by another MINOR includes: repeated and unwelcome sexual advances, requests for sexual favors, or verbal comments, gestures, phone calls, emails, texts, social media messages, pictures sent or shown, other electronic communication, or actions of a derogatory or offensive sexual nature.

Sexual harassment of a minor by an ADULT includes: repeated verbal comments, gestures, phone calls, emails, texts social media messages, pictures sent or shown, or other electronic communication of a sexual nature to a child by a staff member, grantee, contractor, or volunteer, including demeaning references to gender, sexually suggestive or derogatory comments about body or clothing, or obscene language or gestures.

Posted 2/5/18

4.1.4 Inappropriate Sexual Behavior

Inappropriate sexual behavior is behavior that does not meet the definition of sexual abuse or sexual harassment but is sexual in nature.

Posted 2/5/18

4.1.5 Questions and Answers about the Definitions

Q: Can an act be considered sexual abuse or sexual harassment if the perpetrator is a minor, but not a UAC?

A: Yes, a minor perpetrator can include another UAC, another child or youth residing at the same care provider facility (e.g., a participant in the URM program), or a child or youth with whom a UAC may have contact (e.g., a classmate at school).  If a minor perpetrates an act that meets the definition of sexual abuse as described above, whether the minor is a UAC or not, the care provider must report the incident to all appropriate entities according to federal, state, and ORR reporting policy and procedures,

Q: Can an act be considered sexual abuse or sexual harassment if the act is perpetrated by a UAC on a care provider staff member?

A: The definitions of sexual abuse and sexual harassment described above are intended to be broad to ensure the safety and wellbeing of unaccompanied alien children in the care of ORR.  However, acts perpetrated on staff do not fall under these definitions.  Care providers should still report these incidents according to state law and ORR reporting policy and procedures.  For example, a care provider may need to report the incident to ORR as a SIR as a behavioral incident.

Q: Can an act that occurred between two UAC fall under the definition of sexual abuse if both UAC claim the act was consensual?

A: The definitions provided above do not distinguish between consensual and nonconsensual acts. Care providers should follow the reporting policies described in Section 4 regardless of whether the act was consensual or nonconsensual.

Posted 2/5/18

4.2 Zero Tolerance Policy

ORR has a zero-tolerance policy for all forms of sexual abuse, sexual harassment, and inappropriate sexual behavior at all care provider facilities, including secure care provider facilities and long term foster care providers, and will make every effort to prevent, detect, and respond to such conduct.  Section 4 of the ORR Guide provides an outline for and guidance on ORR’s approach to preventing, detecting, and responding to such conduct.

Posted 2/22/15

4.2.1 Application

To Whom Does This Policy Apply?
ORR policies apply not only to all care provider facilities and their staff, but also to any volunteer, contractor, sub-contractor, grantee, sub-grantee or other individual that may have regular contact with children or youth at the facility.

Adherence to ORR’s policies must be included in all care provider facility agreements with volunteers, contractors, sub-contractors, grantees, and sub-grantees that may have regular contact with children or youth at the facility.  Care provider facilities must also include in these agreements provisions for monitoring and evaluation to ensure that all volunteers, contractors, sub-contractors, grantees, and sub-grantees comply with ORR policies.

ORR includes provisions in all new contracts, contract renewals, cooperative agreements, or cooperative agreement renewals to ensure compliance with Interim Final Rule (IFR) standards.  All current contractors and grantees with cooperative agreements must comply with Section 4 of the ORR Guide within six (6) months of the IFR’s publication.

Posted 2/22/15

4.2.2 Care Provider Requirements

What Is Required of Care Provider Facilities?
All care provider facilities must have a written zero tolerance policy for all forms of sexual abuse, sexual harassment, and inappropriate sexual behavior.  The policy must outline the facility’s approach to preventing, detecting, and responding to such conduct through written policies and procedures that are approved by ORR.

The care provider facility’s policies, procedures, and services must:

  • Be culturally-sensitive and knowledgeable;
  • Be age appropriate;
  • Be tailored for a diverse population of children and youth, including children or youth who are LGBTQI (lesbian, gay, bisexual, transgender, questioning, and intersex);
  • Ensure that children or youth with disabilities, including but not limited to children or youth who are deaf, hard of hearing, blind, or have low vision and children or youth with intellectual, psychiatric, or speech disabilities, have an equal opportunity to participate in or benefit from all care provider facility policies and procedures;
  • Ensure that children or youth with limited reading ability or who are limited English proficient (LEP) have an equal opportunity to participate in or benefit from all care provider facility policies and procedures;
  • Provide for effective communication with children or youth with disabilities or who are LEP, including access to in-person, telephonic, or video interpretive services that enable effective, accurate, and impartial interpretation, both receptively and expressively, using any necessary specialized vocabulary;
  • Require quality in-person or telephonic interpretation services that enable effective, accurate, and impartial interpretation services; and
  • Ensure that any written materials, including but not limited to notifications, orientation materials, and instruction, are translated either verbally or in written form in the child or youth’s preferred language.

Posted 2/22/15

4.3 Personnel

This section covers requirements related to personnel issues. This section applies to all care provider facilities, including long-term foster care.  Secure facilities are subject to the U.S. Department of Justice’s National Standards to Prevent, Detect, and Respond to Prison Rape, 28 CFR part 115, and are not covered by this section.

Revised 3/11/19 

4.3.1 Prevention of Sexual Abuse Coordinator and Compliance Manager   

ORR’s Prevention of Sexual Abuse Coordinator (PSA Coordinator) oversees compliance with the Interim Final Rule (IFR) and related policies and procedures at all care provider facilities.

Each care provider facility must have a Prevention of Sexual Abuse Compliance Manager (PSA Compliance Manager), who is responsible for compliance with the IFR and related policies.  The PSA Compliance Manager must have the time and authority to oversee compliance efforts program-wide. The PSA Compliance Manager also serves as a point of contact for ORR’s PSA Coordinator and must promptly respond to all requests. The PSA Compliance Manager position requires ORR pre-hire approval.  

Revised 1/14/19   

4.3.2 Applicant Screening

Applicant screening is critical to identifying qualified staff.  Integrating sexual abuse prevention into the applicant screening and selection process is critical to ensuring the safety of children and youth.  Care provider facilities must consider sexual abuse prevention as one of the components when deciding which applicant to select for a staff, contractor, or volunteer position. 

Care provider facilities must take several steps to show their commitment to preventing sexual abuse. These steps may help deter some individuals who are at risk of abusing children and youth from applying for employment. One such step is to inform each applicant in writing of policies to prevent and report sexual abuse and harassment. An applicant must sign a document indicating that they have read and understood the policies. Care provider facilities must also share a copy of the code of conduct in Section 4.3.3 with each applicant. Care provider facilities must keep a copy of these documents in the applicant’s personnel file.

Care provider facilities must use a written application to collect critical information to assess the suitability of each applicant.  A written application should ask open-ended questions that encourage answers that can be further clarified during a personal interview.  Conducting in-depth personal interviews is another way to look for risk factors or “red flags” in applicants.  Care provider facilities may also create scenarios to use in the written application or in personal interviews to assess an applicant’s judgement by revealing potential concerns or boundary issues.

Care provider facilities must ask applicants for at least one personal reference. Personal references can provide additional information about an applicant’s suitability for working with children and help a care provider facility assess if the applicant has mature, adult relationships.

A written application must ask about past work and volunteer experiences.  Professional reference checks can provide more information about an applicant and verify their employment and volunteer history. Care provider facilities must contact an applicant’s past employers. In particular, care provider facilities must make their best efforts, consistent with the law, to contact past employers that were ORR care provider facilities, child care entities, correctional facilities, pretrial detention facilities, community-based homes, or juvenile residential facilities.

Care provider facilities should focus on contacting past employers that provided an applicant with access to children and youth. These past employers can provide information about an applicant’s judgement and how an applicant interacts with youth.  As part of the screening process, a care provider facility must ask past employers about any substantiated allegations of sexual abuse and sexual harassment.  A care provider facility must also ask if the applicant resigned during a pending investigation of alleged sexual abuse or sexual harassment.  Care provider facilities must document any effort to contact past employers and the results in the applicant’s personnel file.

Care provider facilities must ask all applicants in written applications or interviews about any previous misconduct.  Misconduct includes but is not limited to any criminal behavior, abuse, and/or neglect investigation, charge, arrest, civil adjudication, administrative adjudication, or conviction. Care provider facilities can ask an applicant to clarify or provide more information about disclosed misconduct during a personal interview.  Care provider facilities must document any effort to ask applicants about previous misconduct and the applicant’s response in the applicant’s personnel file.

Revised 3/11/19     

4.3.3 Employee Background Investigations  

Completing background investigations is another critical component of the screening process.  Background checks provide more information about the suitability of an applicant to work with children and youth in ORR care.  However, care provider facilities cannot rely solely on background checks to assess the suitability of an applicant to work with children and youth in ORR care. 

ORR has minimum standards for the scope of background checks because State licensing requirements vary from State to State. Care provider facilities must complete background investigations according to ORR’s minimum standards and State licensing requirements on all staff, contractors, and volunteers before their hire.

The care provider facility must complete the fingerprint check using a public or private vendor, if State licensing requirements do not require a national criminal history fingerprint check. If there is an additional cost associated with this fingerprint check, the care provider facility may include the cost in its budget plan.

Care provider facilities cannot utilize the U.S. Department of Health and Human Services, Program Support Center (HHS/PSC) to complete staff, contractor, and volunteer background checks. HHS/PSC’s priority is to complete background investigations for potential sponsors of unaccompanied alien children and lacks authority to provide background checks on behalf of care providers.

Care provider facilities must keep the results of all background checks in the employee’s personnel file.  The care provider must document the review and conclusions about a background investigation and keep it in the employee’s personnel file.  The care provider facility must provide all information about a background investigation, including the background check and conclusions, to ORR if requested.

Who Must Complete a Background Investigation?
ORR regulations require that care provider facilities conduct a background investigation prior to hiring new staff to determine whether the applicant is suitable for employment with minors in a residential setting. If State law or licensing regulations prohibit a care provider facility from conducting background checks before hiring an applicant, the care provider facility must notify ORR’s Prevention of Sexual Abuse Coordinator and provide documentation of the State law or licensing requirement.

The following individuals must complete background checks before they are hired and gain access to children or youth:

  • Executive and program management staff as well as administrative staff with direct access to children or youth;
  • All temporary, part-time, or full-time employees and contractors with direct access to children or youth;
  • Anyone who may have unsupervised, direct access to children or youth, including volunteers;
  • Immigration advocates and legal service providers under policies established in an agreement between the care provider facility and service provider. ORR must approve the organization’s background check policies and procedures before granting it access to any child or youth. Care provider facilities may have additional requirements according to their State licensing requirements; and
  • Foster parents (transitional and long-term) and all foster parent household members aged 18 and over.

Attorneys of record do not need to complete a background check, but care provider facilities must  have policies to confirm the identity and the status of attorneys of record before providing them access.

Medical and mental health professionals (e.g., doctors, nurses, nurse practitioners, psychiatrists, licensed clinicians) who provide services on site but are not employed by the care provider facility do not need to complete background investigations. Such professionals must, however, have up to date applicable state licensure requirements.

At a Minimum, What Must the Background Investigation Include?
The scope of background investigations must comply with State licensing requirements and ORR minimum standards, which include:

  • A FBI fingerprint check of national and state criminal history repositories;
  • A child protective services check with the staff’s State(s) of U.S. residence for the last five years; and
  • Background investigation updates at a minimum of every five years of the staff/contractor/volunteer’s start date or last background investigation update. Care provider facilities may require the updated background investigation more frequently as necessary.

Care provider facilities must notify ORR’s Prevention of Sexual Abuse Coordinator in writing if they are unable to complete all the required background investigation components. ORR will work with the care provider facility to ensure that background checks are completed.

Revised 3/11/19

4.3.4 Hiring Decisions

Care provider facilities must establish policies and procedures about hiring decisions.  These policies and procedures must include clear criteria for determining an applicant’s suitability and addressing barrier issues and recent criminal convictions in policy.  Barrier issues are criminal convictions or child abuse and neglect findings that may prevent an applicant from working in a licensed child care facility where access to children is a part of their duties. Such policies and procedures must also comply with State licensing requirements.

Care provider facilities must submit the name of each potential staff member to ORR for final approval.  This includes any applicant who will have direct access to children, such as youth care worker positions. ORR will check to see if the applicant has previously been terminated by a care provider facility for a substantiated allegation of sexual abuse, sexual harassment, or inappropriate sexual behavior. Care provider facilities do not need to submit the names of foster care parents for approval because they are subject to State licensing requirements. 

How Should Care Provider Facilities Handle Possible Barrier Issues or Convictions?

If an applicant’s arrest report or State child protective services check shows a potential barrier issue or recent conviction, the care provider facility’s human resources representative and/or Program Director must review the arrest report with the applicant and take action consistent with State licensing requirements.  The care provider facility must document this information and action in personnel files. ORR may review the care provider facility’s actions to ensure consistency with both State licensing standards and ORR policies and procedures.

Care provider facilities are prohibited from hiring or utilizing the services of any applicant, contractor, or volunteer who has engaged in, attempted to engage in, or has been civilly or administratively adjudicated to have engaged in sexual abuse, sexual harassment, intimate partner (domestic) violence, or any type of inappropriate sexual behavior. Care providers facilities are also prohibited from hiring or utilizing the services of any applicant, contractor, or volunteer who, as an adult, perpetrated any crime involving a child, regardless of how long ago the incident occurred, or a violent crime within the past 10 years.

In considering whether to hire an applicant or utilize the services of any applicant, contractor, or volunteer when the screening indicates a conviction of other crimes or questionable behavior, the care provider facility must consider the following factors:

  • The relationship between the incident and the type of employment or service that the applicant will provide.
  • The applicant’s employment or volunteer history before and after the incident.
  • The applicant’s efforts and success at rehabilitation.
  • The likelihood that the incident would prevent the applicant from performing their responsibilities in a manner consistent with the safety and welfare of UAC.
  • The circumstances and/or factors indicating the incident is likely to be repeated.
  • The nature, severity, number, and consequences of the incidents disclosed.
  • The circumstances surrounding each incident, including contributing societal or environmental conditions.
  • The age of the individual at the time of the incident.
  • The amount of time elapsed since the incident occurred.

Omitting a material fact about misconduct or providing false information during the screening process is grounds for termination or withdrawal of an offer of employment, as appropriate.  Misconduct includes but is not limited to any criminal behavior, abuse, and/or neglect investigation, charge, arrest, civil adjudication, administrative adjudication, or conviction.

What Should a Care Provider Facility Do When Asked About A Former Employee?
If contacted by another care provider facility or institutional employer, such as a community-based home or correctional institution, for a reference check, a care provider facility must provide information about substantiated allegations of sexual abuse, sexual harassment, and inappropriate sexual behavior unless prohibited by law. Care provider facilities must also disclose if the former employee resigned during a pending investigation of alleged sexual abuse, sexual harassment, or inappropriate sexual behavior. If State laws prevent a care provider facility from sharing information about former employees without written permission, we encourage care provider facilities to ask employees to sign a release of information so this information can be shared in the future.

Revised 3/11/19

4.3.5 Staff Code of Conduct

ORR is committed to providing a safe environment to all UAC in its care, including protecting UAC from sexual abuse and sexual harassment. In order to ensure the safety of UAC, who are under the age of 18, care provider facility staff, contractors, and volunteers must comply with the following Code of Conduct. This code of conduct does not apply to foster parents, who are subject to State licensing requirements.

  1. Staff will not engage in any form of sexual abuse or sexual harassment, as defined at Section 4.1 of ORR’s UAC Policy Guide.
  2. Staff will not verbally or physically abuse any unaccompanied alien child.
  3. Staff will not engage in sexual contact with anyone while on duty or while acting in the official capacity of their position.
  4. Staff will not exchange letters, gifts, pictures, phone numbers, e-mail addresses, or social media information with any UAC in ORR care or within three years of the child’s discharge. Requests for exceptions must be submitted in writing to and approved by care provider management.
  5. Staff may not have contact with any unaccompanied alien children outside of the care provider facility beyond that necessary to carry out job duties while the child is in ORR care or within three years of the child’s discharge. Requests for exceptions must be submitted in writing to and approved by care provider management.
  6. Staff must confine their relationships with UAC families and sponsors to those activities which fall within the scope of the staff’s job duties. Requests for exceptions must be submitted in writing to and approved by care provider management.
  7. Staff may not engage in a romantic or sexual relationship with a UAC while the child is in ORR care or within three years of the child’s discharge.
  8. Staff may not live with a UAC within three years of the child’s discharge.
  9. Staff must report knowledge, suspicion, or information about sexual abuse, sexual harassment, or inappropriate sexual behavior according to mandatory reporting laws, Federal laws and regulations, and ORR policies and procedures.
  10. Staff with knowledge or information of a staff violating this Code of Conduct must report this knowledge or information to their supervisor. 
  11. Staff have a continuing affirmative duty to disclose any misconduct that occurs on or off duty.

Care provider facilities must immediately terminate any staff member who violates this Code of Conduct. Care provider facilities must suspend any staff member suspected of violating this Code of Conduct pending investigation.

Revised 3/11/19

4.3.6 Staff Training

Care provider facilities must provide training to all staff, contractors, and volunteers.  Training ensures that employees understand their obligations under ORR policies. Care provider facilities must tailor trainings to the unique needs, attributes, and gender of the unaccompanied alien children in care at the individual care provider facility. For example, an employee must receive additional training if reassigned from a care provider facility that houses only male unaccompanied alien children to a care provider facility that houses only females.  Care provider facilities must document the completion of all trainings in personnel files.

Care provider facilities must review and revise their training and development plan annually based on their training needs.

What Trainings Are Employees Required to Complete?
All employees who may have contact with unaccompanied alien children must complete trainings on the following:

  • ORR and the care provider facility’s zero tolerance policies for all forms of sexual abuse, sexual harassment, and inappropriate sexual behavior;
  • The right of unaccompanied alien children and staff to be free from sexual abuse, sexual harassment, and inappropriate sexual behavior;
  • Definitions and examples of prohibited and illegal sexual behavior;
  • Recognition of situations where sexual abuse, sexual harassment, and inappropriate sexual behavior may occur;
  • Recognition of physical, behavioral, and emotional signs of sexual abuse and methods of preventing and responding to such occurrences;
  • How to avoid inappropriate relationships with unaccompanied alien children;
  • How to communicate effectively and professionally with unaccompanied alien children, including unaccompanied alien children who are lesbian, gay, bisexual, transgender, questioning, or intersex;
  • Procedures for reporting knowledge or suspicion of sexual abuse, sexual harassment, or inappropriate behavior as well as how to comply with relevant laws related to mandatory reporting;
  • The requirement to limit reporting of sexual abuse, sexual harassment, and inappropriate sexual behavior to staff with a need-to-know in order to make decisions concerning the victim’s welfare and for law enforcement, investigative, or prosecutorial purposes;
  • Cultural sensitivity toward diverse understanding of acceptable and unacceptable sexual behavior and appropriate terms and concepts to use when discussing sex, sexual abuse, sexual harassment, and inappropriate sexual behavior with a culturally diverse population;
  • Sensitivity regarding trauma commonly experienced by unaccompanied alien children;
  • Knowledge of existing resources for unaccompanied alien children inside and outside the care provider facility, such as  trauma-informed treatment, counseling, and legal advocacy for victims;
  • General cultural competency and sensitivity to the culture and age of unaccompanied alien children; and
  • Proper procedures for conducting professional pat-down searches, including cross-gender pat-down searches and searches of transgender and intersex unaccompanied alien children in a respectful and least intrusive manner.

New employees must complete training before gaining access to children and youth.  All employees must complete refresher trainings on the above topics every year or with any policy change or update, whichever comes first. All employees must receive ORR-provided refresher training about avoiding inappropriate relationships and reporting sexual abuse and sexual harassment every six months.

What Trainings Are Required For Medical and Mental Health Care Staff?
Medical and mental health care staff employed or contracted by care provider facilities must, in addition to the trainings required above, receive specialized trainings on working with victims and potential victims of sexual abuse and sexual harassment as medical and mental health care practitioners. Care provider facilities must ensure that all full- and part-time medical and mental health care practitioners are trained on the following additional topics specific to providing medical and mental health care:

  • How to detect and assess signs of sexual abuse and sexual harassment
  • How to preserve physical evidence of sexual abuse
  • How to respond effectively and professionally to juvenile victims of sexual abuse and sexual harassment

If medical staff employed by a care provider facility conduct forensic examinations, they must receive training to conduct such forensic examination FOOT for victims of sexual abuse. Care provider facilities must maintain documentation that medical and mental health care practitioners have received the specialized training listed in the previous paragraph as well as the training mandated for all employees.

What Trainings are Required for Contractors and Volunteers?
Care provider facilities must provide all trainings listed for employees to all new contractors and volunteers if they provide services on a regular basis and have contact with unaccompanied alien children. Volunteers who provide services for one day or less, such as holiday events, are not required to complete the above trainings. However, the volunteers must be directly supervised by staff at all times. Care provider facilities must maintain documentation confirming that contractors and volunteers received all required trainings and pre-service trainings and understood the training they completed.

Revised 3/11/19

4.3.7 Employee Performance Evaluations and Promotion Decisions

Care provider facilities must, at a minimum, conduct employee performance evaluations once a year. When evaluating staff and making promotion decisions, care provider facilities must again ask all staff in interviews or written self-evaluations about any prior misconduct or misconduct that arose since the staff member’s last background investigation. This misconduct includes, but is not limited to:

  1. Any civil or criminal convictions, charges, arrests, investigations, or adjudications;
  2. Having engaged in or attempted to engage in sexual abuse, sexual harassment, or inappropriate sexual behavior, a crime involving a minor, or any violent crime;
  3. Having been civilly or administratively adjudicated to have engaged in or attempted to engage in any of the activities listed above.

Care provider facilities are prohibited from promoting any employee or continuing to enlist the services of any contractor or volunteer who has engaged in any activity listed under number 2 above. The care provider facility may use discretion, depending on the type or nature of the activity, and the factors listed in section 4.3.4 if the employee, contractor, or volunteer has engaged in any activity listed under number 1 and 3 above.

All employees must be given the opportunity to read the evaluation report, to obtain a copy of the report, and to include written comments before the report is entered into the personnel record. The final signed evaluation, which includes the employee’s written comments, must be placed in the employee’s personnel file and provided, upon request, to ORR.

The care provider facility’s efforts to ask applicants about previous misconduct and the employee’s response must be documented in personnel files.

Posted 1/14/19

4.3.8 Disciplinary Sanctions and Corrective Actions

Disciplinary Sanctions for Staff
A care provider facility must take disciplinary action up to and including termination against any staff member with a substantiated allegation of sexual abuse or sexual harassment against them or for violating ORR’s or the care provider facility’s sexual abuse-related policies and procedures. Termination must be the presumptive disciplinary sanction for staff who engaged in sexual abuse or sexual harassment. All terminations for violations of ORR and/or the care provider facility’s sexual abuse-related policies and procedures or resignations by staff who would have been terminated if not for their resignation must be reported to  law enforcement agencies and to any relevant licensing bodies. All disciplinary sanctions, remedial measures, and follow-up actions must be documented in the employee’s personnel file.

Care provider facilities must report to ORR all terminations against any staff member with a substantiated allegation of sexual abuse or sexual harassment or any staff member who was terminated for violating ORR’s or the care provider facility’s sexual abuse-related policies.

Corrective Actions for Contractors and Volunteers
Any contractor or volunteer who engaged in sexual abuse or sexual harassment must be prohibited from contact with unaccompanied alien children and terminated from the contract or not be allowed to volunteer at the care provider facility. Such incidents must be immediately reported in accordance with Section 4.10. Contractors and volunteers suspected of perpetrating sexual abuse or sexual harassment must be removed from all duties requiring contact with children or youth pending the outcome of the investigation in accordance with Section 4.6.3. Care provider facilities must take appropriate remedial measures and must consider whether to prohibit further contact with unaccompanied alien children by any contractor or volunteer who has not engaged in sexual abuse but violated other provisions of ORR’s sexual abuse-related policies and procedures or the care provider facility’s sexual abuse-related policies and procedures. All corrective actions and follow-up must be documented.

Revised 3/11/19

4.3.9 Questions and Answers

Q: Can a care provider facility hire an applicant before receiving the results of both the FBI fingerprint check and the child protective services check?

A: A care provider facility may extend a conditional offer of employment prior to receiving the results of both components of the background check. However, the applicant’s start date must be after the care provider facility receives the results of both the FBI fingerprint check and the child protective services check.

Q: Can an applicant begin the mandatory trainings outlined in Section 4.3.6 and the Cooperative Agreement before the care provider facility has received the results of the FBI fingerprint check and the child protective services check?

A: The care provider cannot provide a start date to an applicant before receiving the results of both components of the background check. Orientation and mandatory trainings cannot begin until after the care provider facility has received the results of both background checks. However, a care provider may begin providing trainings before receiving the results of both components of the background check if the trainings are provided in a facility that is completely separate from the facility in which they provide care to children and youth. Care providers must provide documentation to their PO showing that the training facility will not provide direct access to children and youth.

Q: Can reference checks be completed after an applicant is hired?

A: ORR regulations require that care provider facilities make their best efforts, consistent with law, to contact past employers before hiring an applicant. A care provider facility can show they made their “best effort” by providing documentation that they attempted to contact a reference several times. The care provider facility must show that these attempts occurred prior to the start date of the applicant. A care provider facility may, however, continue attempting to contact a reference after an applicant has started employment, if the facility was previously unable to contact the reference.

Q: When does a care provider facility request final approval of an applicant?

A: Care provider facilities must submit the name of an applicant as a last step before they extend an offer of employment. This submission should be after the care prover facility has completed reference checks and received the results of both components of the background check.

Q: Section 4.3.4 prohibits care provider facilities from hiring an applicant or enlisting the services of a contractor or volunteer who was convicted of violent crime in the last 10 years. What is a violent crime?

A: Violent crime includes simple assault, and aggravated assault. Violent crime also includes burglary or robbery, which is the unlawful or forcible entry or attempted entry of a permanent residence, other residence (e.g., a hotel room or vacation room), or other structure (e.g., a garage or shed) by a person who had no legal right to be there. Care providers are prohibited from hiring staff or enlisting the services of a contractor or volunteer who was convicted of murder.

Posted 3/11/19

4.4 Staffing and Supervision

This section covers requirements related to staffing and supervision; video monitoring; searches; and facility and technology upgrades.  This section applies to all care provider facilities, unless indicated otherwise.  This section does not apply to individual foster care homes but does apply to foster care provider facilities where children and youth may receive group services during the day.

Posted 3/16/15

4.4.1 Staffing Levels

ORR requires that care provider facilities supervise children and youth in their facilities in accordance with State licensing requirements.  Staff-children ratios, however, must be maintained at a minimum of:

  • One (1) on-duty Youth Care Worker for every eight (8) children or youth during waking hours; and
  • One (1) on-duty Youth Care Worker for every sixteen (16) children or youth during sleeping hours2

On-duty Youth Care Workers must provide line of sight and sound supervision of children in order to be counted towards ratio requirements.  In addition, the primary responsibility of on-duty Youth Care Workers must be the supervision of children in order to be counted towards ratio requirements.

Additional or backup personnel should be available for emergency situations or to meet the special needs of children or youth during busier periods.  Rotating after-hours and holiday coverage personnel must also be available in crisis situations.  Same gender supervision must be provided when indicated by individual treatment needs.

Revised 5/31/16

4.4.2 Staffing Plans and Video Monitoring Restrictions  

Staffing Plans
Care provider facilities must develop and document staffing plans that provide for adequate levels of staffing that includes, at a minimum, the above required staffing ratio levels at all times.  Additionally, ORR requires that, where available under State and local licensing standards, care provider facilities must have video monitoring technology to assist in supervising and protecting children and youth at the care provider facility.  Any video monitoring system should include the ability to permanently download footage when necessary.  Care provider facilities must provide video monitoring footage to ORR upon request.  
 
In creating a staffing plan and determining the placement of video monitoring technology, care provider facilities must take into consideration the following:

  • The physical layout of the facility, including the exterior of the building and the surrounding premises;
  • The composition of the population of children and youth;
  • The prevalence of substantiated and unsubstantiated incidents of sexual abuse and sexual harassment in certain physical areas;
  • The prohibition of cross-gender pat-down searches of children and youth except in exigent circumstances;
  • If a child or youth has special needs and requires assistance with showering, performing bodily functions, and changing clothing, the care provider staff member assisting the child or youth must be of the same gender when assisting with such activities;
  • Viewing restrictions as described below; and
  • Any other relevant factors

As part of staffing plans, care provider facilities must conduct frequent unannounced rounds during both day and night shifts to identify and deter sexual abuse and sexual harassment.  Care providers must prohibit staff from alerting others that rounds are occurring, unless the announcement is related to the legitimate operational function of the facility.  For example, staff may announce their presence before entering a restroom. 

Care provider facilities must assess their personnel and staffing needs as part of annual planning and prepare for anticipated needs by comparing the composition of facility’s current workforce with projected workforce needs.  If a care provider facility’s staffing plan does not meet the cultural and racial diversity needs of the population of children and youth at the facility, the care provider facility must document the reasons why they are not meeting these needs and work with local communities to meet the needs of children and youth through other means, such as working with diverse local service providers.

Viewing and Video Monitoring Restrictions
Video monitoring equipment may not be placed in any bathroom, shower or bathing area, or other area where children or youth routinely undress.  Care provider facilities must permit children and youth to shower and bathe, perform bodily functions, and change clothing without being viewed by staff members, except:

  • In exigent circumstances;
  • When such viewing is incidental to routine room checks;
  • Is otherwise appropriate in connection with a medical examination or monitored bowel movement;
  • If a child or youth is under age 6 and needs assistance;
  • If a child or youth with special needs is in need of assistance; or
  • If a child or youth requests and requires assistance.

If a child or youth requires assistance with using the bathroom, showering or bathing, or changing clothes for any of the reasons listed above, then the staff member assisting the child or youth must be of the same gender as the child or youth.

Posted 3/16/15

4.4.3 Searches of Children and Youth


Care provider facilities are prohibited from conducting strip searches or visual body cavity searches of children or youth.  Secure care providers may conduct such searches in accordance with the Department of Justice’s Final Rule to Prevent, Detect, and Respond to Prison Rape.

Care providers may conduct pat-down searches.  All pat-down searches:

  • Must be conducted by a staff member that is the same gender as the child or youth being searched unless the child or youth identifies as transgender or intersex.  Cross-gender pat-down searches are prohibited except in exigent circumstances.  An exigent circumstance is any set of temporary or unforeseen circumstances that require immediate action in order to combat a threat to the security of a care provider facility or a threat to the safety and security of any person.
  • Must be conducted in the presence of one additional care provider facility staff member that is the same gender as the child or youth being searched unless there are exigent circumstances.
  • Must be documented and reported to ORR via a significant incident report.  

If a child or youth identifies as transgender or intersex, who may conduct a pat-down search, if necessary?
Care provider facilities must ask the child or youth to identify the gender of staff with whom he/she would feel most comfortable conducting the search.  The care provider facility must then respect the child or youth’s selection and provide a staff member of the selected gender to conduct the search and a second staff member of the same selected gender to be present when the search is conducted.

Are there other restrictions on searches generally?
Care provider facilities may not search or physically examine a child or youth for the sole purpose of determining the child or youth’s sex.  If the child or youth’s sex is unknown, it may be determined during conversations with the child or youth, by reviewing medical records, or, if necessary, learning that information as part of a broader medical examination conducted in private by a medical practitioner.

Posted 3/16/15

4.4.4 Upgrades to Facilities and Technologies

What must care provider facilities consider when upgrading facilities?
When designing or acquiring any new facility and in planning on any substantial expansion or modification of existing facilities, care provider facilities must consider, as appropriate,  the effect of the design, acquisition, expansion, or modification of the physical building on their ability to protect children and youth from sexual abuse and sexual harassment.  Consideration must be made to ensure clear line-of-sight and elimination of rooms or spaces that prevent visual access.  Care provider facilities must document these considerations and actions or inactions taken.

What must care provider facilities consider when upgrading technologies?
When installing or updating a video monitoring system, electronic surveillance system, or other monitoring technology, the care provider facility, as appropriate, must consider how such technology may enhance its ability to protect children and youth from sexual abuse and sexual harassment while maintaining the privacy and dignity of children and youth.  Care provider facilities must document these considerations and actions or inactions taken.

Posted 3/16/15

4.5 Responsive Planning 

All children and youth receive, among other services, weekly individual and group counseling; an initial medical examination; ongoing and emergency medical and dental services; referrals to local legal service providers; and case management services.  Any child or youth who has notified ORR of sexual abuse or harassment that occurred prior to ORR care and custody is provided the services listed above and additional crisis intervention and trauma-focused services as needed.  For any child or youth that is a victim of sexual abuse or sexual harassment that occurred in ORR care and custody, care provider facilities must offer the services of external, independent service providers so the child or youth has an opportunity to speak with someone outside of the care provider facility if he/she prefers. 

Responsive planning refers to care provider facility preparations to work with outside service providers in the event there is an incident of sexual abuse or sexual harassment that occurs at the care provider facility.  This section applies to all care provider facilities, including secure care provider facilities, but does not apply to long term foster care provider facilities unless otherwise specified. 

Posted 3/23/15   

4.5.1 Access to Community Service Providers and Resources

Care provider facilities must develop written policies and procedures to include community service providers and other external resources, such as child advocacy centers or rape crisis centers, to provide valuable expertise and support to victims of sexual abuse and sexual harassment incidents that occur in ORR care and custody.  Care provider facilities must establish specific written procedures to offer any victim of sexual abuse or sexual harassment that occurred in ORR care and custody the services of a confidential external victim advocate from a community or immigrant service provider to provide:

  • Crisis intervention and trauma-focused services;
  • Counseling and medical referrals;
  • Emotional support and processing of the event; and
  • Legal support and other assistance during any investigation and prosecution.

If a community or immigrant service provider is not available or if the victim prefers, the care provider facility may provide a licensed clinician at the care provider facility to provide the services listed above for the child or youth.  Care provider facilities must document that they offered the above services and the child or youth’s response for any child or youth that was sexually abused or harassed at the care provider facility.     

Memoranda of Understanding or Other Agreements with Service Providers
In order to establish the required procedures above, care provider facilities must maintain or attempt to enter into memoranda of understanding (MOUs) or other agreements with local child advocacy centers, rape crisis centers, immigrant victim service providers, and/or other community service providers to provide services to victims of sexual abuse and sexual harassment that occurred at the care provider facility.  If local service providers are not available, care provider facilities must maintain or attempt to enter into MOUs or other agreements with national service provider organizations.  All agreements must have provisions that require the community or immigrant service provider to report any allegations received to ORR.  Care provider facilities must maintain copies of its agreements or documentation showing attempts to enter into such agreements and provide copies to ORR upon request.

Informing Children and Youth of Service Providers
During every child or youth’s orientation, care provider facilities must provide information about the local and/or national service providers and organizations available to assist them.  Care provider facilities must provide this in writing to every child or youth and document it in the child or youth’s case file.  The written information must include:

  • Names and descriptions of the organizations;
  • Mailing addresses; and
  • Telephone numbers, including toll-free hotline numbers where available.

Care provider facilities must also explain to the child or youth the extent to which communications with the service providers will be confidential and provide access to pre-programmed telephones at the care provider facility to provide direct access to service providers without the assistance of staff at the care provider facility.

Posted 3/23/15 

4.5.2 Forensic Medical Examinations 

If an allegation involves oral, genital, or anal contact by or to another person or object, then the care provider facility, with the victim’s consent, must arrange for the victim to undergo a forensic medical examination as soon as possible at a local hospital.  Any minor age 14 and over may provide consent for him- or herself.  For any minor under the age of 14 and where the location and contact information of a parent is known, the care provider facility must obtain parental consent to conduct the examination.  If the care provider facility has documentation to show, however, that contacting a parent would present a safety risk or if the location of a parent is unknown, then the ORR/FFS will provide consent to conduct the examination.  Where possible, the forensic medical examination must be performed by a Sexual Assault Forensic Examiner (SAFE) or a Sexual Assault Nurse Examiner (SANE).  If a local SAFE or SANE is not available, the examination may be performed by a qualified medical professional at a local hospital.  Long term foster care providers are required to arrange a forensic medical examination.

Care provider facilities must ask the child or youth if he/she would like his/her victim advocate, other external service provider, or the care provider facility’s clinician to be present during any forensic examination or investigatory interview, to the extent possible.  Other external service providers may also include victim advocacy services offered at a hospital conducting a forensic medical examination.  Care provider facilities must document that they offered the above services and the child or youth’s response.

To the extent possible and with consideration of the child or youth’s preference, care provider facilities must request that the investigating agency and medical examiner allow victim advocates, other external service providers, or the care provider facility’s clinicians to be present and provide support to any child or youth during any medical examination or other investigation.  

Posted 3/23/15

4.6 Coordinated Response

This section addresses the responsibilities of care provider facilities immediately following an incident of sexual abuse or sexual harassment as well as the follow-up necessary to ensure the safety of all children and staff.  This section applies to all care provider facilities, including secure care providers and long term foster care providers.

Posted 4/6/15

4.6.1 Coordinated Response Policies and Procedures

Care provider facilities must develop written policies and procedures to coordinate actions taken by staff first responding to an incident; emergency services providers; medical and mental health practitioners; community service providers; outside investigators such as Child Protective Services and local law enforcement, as needed; facility leadership; and any other relevant parties as necessary to ensure that: victims receive all necessary immediate and ongoing medical, mental health, and support services; all required services and examinations are complete; and investigators are able to obtain usable evidence.  The policies and procedures should address sexual abuse that occurs in ORR care and custody as well as sexual abuse that occurs prior to ORR care and custody and the necessary response.  The care provider facility’s policies and procedures must utilize a coordinated, multi-disciplinary team approach and be approved by ORR.

Posted 4/6/15

4.6.2 Responder Duties 

The written policies and procedures must include a provision that requires any staff member that learns of an incident of sexual abuse that occurs in ORR care and custody to immediately and in accordance with state laws and licensing requirements:

  1. Separate the alleged victim, perpetrator, and any witnesses and ensure the safety of all children and staff;
  2. Ensure the alleged perpetrator is separated from all children and youth until the safety of all children and staff is established and a safety plan is developed and implemented;
  3. Contact emergency services as needed;
  4. Preserve and protect, to the greatest extent possible, any crime scene until the appropriate authorities are called and arrive to collect evidence;
  5. Request that the alleged victim, perpetrator, and any witnesses not take any actions that could destroy physical evidence, including, as appropriate, washing, brushing teeth, changing clothes, urinating, defecating, drinking, or eating if the abuse occurred within a time period that still allows for the collection of physical evidence; and
  6. Work with the appropriate authorities to arrange a forensic medical examination in accordance with section 4.5.2 Forensic Medical Examinations as soon as possible.

The time period to collect physical evidence may vary depending on the nature of the incident and the type and location of the evidence.  If there could be any possible traces of evidence, protect the item, location, or person, to the extent possible, until the proper investigating authority is contacted and able to physically collect the evidence. 

After the safety of all minors and staff is secured and the crime scene and any evidence, as appropriate, are protected, the staff member must immediately call emergency services, if necessary, report the incident to all appropriate investigating authorities, report the incident to all necessary staff at the care provider facility, and report the incident to ORR in accordance with significant incident reporting policies and procedures.

For an allegation of past sexual abuse, the care provider facility must ensure that the allegation is reported to all appropriate authorities and provide any necessary follow-up services, including emergency and ongoing medical and mental health services; referrals to local legal service providers; and case management services.  If there could be any possible traces of evidence from the allegation of past abuse, care provider facilities must ensure that the proper investigating authorities are called and a forensic medical examination is arranged in accordance with section 4.5.2 Forensic Medical Examinations so that any evidence may be properly collected.  Note that time limits for obtaining evidence may vary due to factors such as the location of the evidence or the type of sample collected.  For example, evidence on clothing may be collected long after an incident occurs.

Posted 4/6/15    

4.6.3 Protecting Children and Youth

Following an allegation of sexual abuse or sexual harassment, care provider facilities must ensure that alleged victims are safe and provided a supportive environment in the least restrictive housing option and setting possible while considering the safety and security of the child or youth as well as other children and youth at the care provider facility.   

To ensure the continued safety and well-being of a child or youth who is an alleged victim of sexual abuse or sexual harassment, the care provider must consider if the following actions should be taken:

  • Change housing assignments within the care provider facility;
  • Transfer the victim and/or perpetrator to another care provider facility in order to better meet the needs of a particular child or youth or to ensure the safety and security of the child or youth or other children or youth.  If there is an ongoing investigation, the care provider facility should work with the investigating agency prior to any transfer to ensure that all investigatory needs have been met;
  • Prevent perpetrators from being in contact with victims; and/or
  • Provide support services for children, youth, and staff who fear retaliation for reporting sexual abuse or harassment or cooperating with an investigation.

Care provider facilities should make every effort to protect an alleged victim without placing the child or youth on one-on-one supervision.  If there is an exigent circumstance, however, care provider facilities may place an alleged victim on one-on-one supervision to protect the safety and security of the child or youth.  An exigent circumstance is defined as any set of temporary or unforeseen circumstances that require immediate action in order to combat a threat to the security of a care provider facility or a threat to the safety and security of any person.  Once an alleged victim is on one-on-one supervision, the care provider facility clinician must re-assess the minor as soon as possible but no later than 48 hours after placing the child or youth on one-on-one supervision so that the child or youth is not on one-on-one supervision longer than necessary.  The child or youth may not be taken off one-on-one supervision until the clinician has completed the re-assessment.  The clinician must consider any increased vulnerabilities as the result of the sexual abuse or sexual harassment when assessing the child or youth and create a safety plan that is documented in the child or youth’s case file.  The care provider facility must ensure that any child or youth placed on one-on-one supervision continues to receive all required services, education services, and recreation time.

If the alleged perpetrator is a care provider facility staff member, contractor, or volunteer, the care provider facility must immediately suspend that individual from all duties that would involve or allow any contact or access to unaccompanied alien children until the investigation of the incident is completed.  If the alleged perpetrator is a child or youth, the care provider facility must develop and implement a safety plan for the child or youth that may include one-on-one supervision if the child or youth continues to pose a threat to self or others.  If an alleged perpetrator is placed on one-on-one supervision, the care provider facility must ensure that the child or youth continues to receive all required services, education services, and recreation time.

Protection Against Retaliation
Care provider facility staff, contractors, volunteers, and all children and youth are prohibited from retaliating against any person who reports, complains about, or participates in an investigation of alleged sexual abuse or harassment.  For any child, youth, staff member, contractor, or volunteer that is involved in an allegation of sexual abuse or sexual harassment, whether he or she was a victim, perpetrator, reporter, witness, or other participant, the ORR/FFS, ORR/PO, and care provider facility staff must monitor the individual to see if there is any indication that there is possible retaliation against him/her.  Monitoring for retaliation must continue for the remainder of the child or youth’s stay at the care provider facility.    

The care provider facility staff should monitor, among other things, the following:

  • Child or youth behavioral reports or loss of behavioral points;
  • Child or youth housing or service changes;
  • Negative staff performance reviews; and
  • Reassignments of staff.

The existence of any of the above actions alone does not necessarily indicate retaliation.  The ORR/FFS, ORR/PO, and the care provider facility must determine if any of the above actions are taking place, and, if so, whether the actions were properly taken.  To determine if actions are properly taken, the care provider facility must discuss any actions taken with the appropriate child, youth, staff member, contractor, or volunteer to determine if retaliation is taking place.  If retaliation is taking place, the care provider facility must take steps to ensure the protection and safety of the individual.  Care provider facilities must document their monitoring efforts to ensure retaliation is not taking place at the facility and any steps taken if retaliation is taking place. 

Ongoing Protection Duties
If a care provider facility staff member reasonably believes that a particular child or youth is subject to substantial risk of imminent sexual abuse or harm, he or she must immediately take action to protect the minor.  To protect the child or youth, the staff member should immediately:

  • Remove the child or youth from a situation that would expose him or her to risk of abuse if the risk appears to be imminent and immediate;
  • Report the concern of suspected risk of abuse to the appropriate staff at the care provider facility and request assistance in enacting measures to ensure child or youth safety; and
  • Report the risk and actions taken to ORR.

Posted 4/6/15

4.6.4 Interventions for Children or Youth Who Engage in Sexual Abuse

If a child or youth perpetrates sexual abuse or sexual harassment against another child, youth, or staff member while in ORR care and custody or admits to perpetrating prior sexual abuse, the care provider facility must respond with appropriate interventions for the child or youth.  The goal of intervention is to achieve improved behavior and ensure the safety and well-being of other children and youth.  Possible types of intervention could include but is not limited to specialized counseling, treatment, and/or educational programming and must take into account the social, sexual, emotional, and cognitive development of the child or youth as well as the child or youth’s mental health status.

Posted 4/6/15

4.7 Educating Children and Youth  

Care providers must inform all unaccompanied alien children of policies for preventing, detecting, and responding to sexual abuse and harassment.  This includes educating children and youth in a manner that is appropriate for their age and culture on a variety of topics, including but not limited to, the care provider’s zero tolerance policy, how to report incidents of sexual abuse and harassment, and the services provided to victims of sexual abuse and harassment.  Care providers also must have policies and procedures in place and appropriate materials available to ensure that information related to sexual abuse and harassment reporting and response is readily available to all children and youth.  This section applies to all care providers, including secure and long term foster care providers.

Posted 6/22/15

4.7.1 Educating Children and Youth on Sexual Abuse and Sexual Harassment

Orientation  
Within 48 hours of admission, care providers must provide every unaccompanied alien child with an orientation on topics related to preventing, detecting, and responding to sexual abuse and harassment.  Care providers also must provide a refresher orientation to children and youth every 90 days from the initial orientation.  The orientation must include, at a minimum, the following topics:

  • The care provider’s zero tolerance policy towards sexual abuse and sexual harassment;
  • The child’s right to be free from sexual abuse or sexual harassment;
  • The child’s right to be free from retaliation for reporting sexual abuse or sexual harassment;
  • The child’s rights and responsibilities related to sexual abuse and sexual harassment;
  • Definitions, explanations, and examples of:  child on child sexual abuse, adult on child sexual abuse, coercive sexual activity, inappropriate sexual behavior, appropriate and inappropriate relationships, and sexual harassment;
  • How to report sexual abuse and sexual harassment, including:
    - Reporting to any care provider staff member, volunteer, or contractor either verbally, in writing, or via a grievance;
    - Reporting to ORR by telling an FFS or calling the ORR Hotline;
    - Informing an outside community service provider via telephone or in writing;
    - Reporting to consular officials via telephone or in writing;
  • The child’s right to receive treatment, services, and counseling if the child or youth has been sexually abused or harassed and what those services include; and
  • Boundaries and respecting one another. 

In accordance with Section 4.2.2 Care Provider Requirements, the orientation must be provided by properly trained care provider staff in an age and culturally appropriate manner and in a language that the child understands.  The orientation must be separate from any immigration-related orientation that a child receives.  The care provider must document the completion of the orientation and any refresher orientations in the child or youth’s case file. 

Accessible Policies and Procedures
The care provider is responsible for ensuring that every child and youth in its care understands the orientation and materials provided.

If the care provider has concerns about a child or youth’s ability to comprehend the orientation or any other materials provided, the care provider should consult with a Clinician, the care provider’s Prevention of Sexual Abuse Compliance Manager, and/or the care provider’s assigned ORR/FFS.  Efforts to ensure comprehension should be documented in the child or youth’s case file (e.g. use of translation services, accommodations provided, etc.).

Care provider staff must ensure that all children and youth understand how to report any incident of sexual abuse, sexual harassment, or inappropriate sexual behavior and request assistance without fear of retaliation.  The care provider must ensure that the child understands that he/she can report at any time any concerns, allegations, information, or suspicions of sexual abuse or sexual harassment.  The child may also request and utilize the assistance of another individual to make a report, including any adult, youth, or staff member inside or outside the care provider facility.  If a child requests the assistance of another child, care provider staff member, family member, legal representative, or any other individual, the care provider must take reasonable steps to expedite the request for assistance.

Posted 6/22/15   

4.7.2 Bulletin Board Postings

Care providers must display ORR posters and notices in prominent locations throughout the facility, including on housing bulletin boards, next to telephones, and throughout the care provider facility.  The posters must contain at a minimum the phone numbers for care provider staff, ORR, Child Protective Services, and a community service provider that children and youth can contact if they are a victim of sexual abuse or sexual harassment, feel in danger, or feel unsafe.  The bulletin board notice should be posted in prominent and visible places throughout the facility where children and youth may easily see it.  Posters must be in English and Spanish and any other language, as needed, if the care provider regularly provides services to a specific population of children and youth.

Posted 6/22/15

4.7.3 Pamphlets on Sexual Abuse and Harassment

Within 48 hours of admission, the care provider must provide every child and youth an ORR pamphlet as well as a care provider pamphlet that contains, at a minimum, the following:

  • The care provider’s policies and procedures related to sexual abuse and sexual harassment;
  • The child or youth’s rights and responsibilities related to sexual abuse and sexual harassment and
  • How to contact diplomatic or consular personnel.

The pamphlets must be made available throughout the care provider facility and accessible to any child or youth in the event he/she loses the original pamphlet or would like an additional copy.  Care providers must document in case files that every child and youth received the pamphlet.  Pamphlets must be in English and Spanish and any other language, as needed, if the care provider regularly provides services to a specific population of children and youth.

Posted 6/22/15

4.8 Assessment for Risk

Care providers must assess all children and youth for risk of being a victim or a perpetrator of sexual abuse while in ORR care and custody and use the results of the assessment to inform the minor’s housing, education, recreation, and other service assignments.  This section applies to all care providers, including secure care providers and long term foster care providers, unless otherwise stated.

Posted 6/22/15

4.8.1 Assessment for Risk

To reduce the risk that a child or youth is sexually abused or abuses someone else while in ORR care and custody, all care providers must individually assess every child or youth within 72 hours of admission and every 30 days thereafter via the Assessment for Risk.  Care providers must then use the Assessment for Risk, along with any other completed assessments, to inform the child’s housing, education, recreation, and other service assignments by making an individualized determination on how to ensure the safety and health of each child and youth.  If other assessments are completed at a later date that would change the housing, education, recreation, and other service assignments of the child or youth, the care provider must update the Assessment for Risk accordingly.  Completion of the initial Assessment for Risk and all updates must be documented in the child’s case file.  Information obtained in the Assessment for Risk should also be used to inform later assessments conducted on the child, such as the UAC Assessment.

Long term foster care providers must complete the Assessment for Risk for all children and youth within 72 hours of admission and every 90 days thereafter.

Who May Conduct the Assessment
The Assessment for Risk must be completed by the child or youth’s Clinician or a Qualified Case Manager.  A qualified Case Manager is a Case Manager with at least a Bachelor’s degree in psychology, counseling, social work, or a related human services field and at least 5 years of experience providing direct social services to child clients and training in conducting child assessments.  Care providers must provide children and youth an opportunity to discuss any safety concerns or sensitive issues privately while they are completing the assessments.  

How to Conduct the Assessment for Risk
The Assessment for Risk must be conducted in a private space and in a child-friendly, culturally sensitive manner.  Clinicians and Qualified Case Managers must consider, at a minimum, the following information to assess children and youth for risk of sexual victimization or sexual abusive behaviors:

  • Prior sexual abusive behaviors;
  • Any current charges or offense history;
  • Prior sexual victimization;
  • Age;
  • Level of emotional and cognitive development;
  • Physical size and stature;
  • Any mental, physical, or developmental disability or illness;
  • Any gender nonconforming appearance or manner or identification as lesbian, gay, bisexual, transgender, questioning, or intersex;
  • The child or youth’s own perception of vulnerability; and
  • Any other specific information that may indicate heightened needs for supervision, additional safety precautions, or separation from other specific youth.

The assessment must be completed in a holistic manner informed from a variety of sources, including but not limited to:

  • Conversations with the youth or child during the intake process and when completing various assessments and screenings ; and
  • Court records, case files, care provider and other facility behavioral records, and other relevant documentation from the child or youth’s record/case file.

Posted 6/22/15

4.8.2 Use of Assessment Information

Care providers must use information gathered in the Assessment for Risk to inform a child or youth’s housing, education, recreation, and other activity or service assignments by making an individualized determination on how to ensure the safety and health of each child.

If the Assessment for Risk indicates that the child experienced prior sexual victimization or perpetrated sexual abuse, the Clinician must ensure to follow-up, as appropriate, with any necessary medical or mental health services.  Qualified Case Managers must ensure such cases are referred to the Clinician for further evaluation or follow-up.  If the Clinician determines that a medical or mental health referral is necessary, the child must receive a medical and/or mental health evaluation no later than 72 hours after the referral.

Care providers must implement appropriate controls on disseminating information contained in the Assessment for Risk within the care provider facility in order to ensure that sensitive information is not exploited to the child or youth’s detriment by staff or other children or youth.  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.     

Determining Housing and Other Service Assignments for Transgender and Intersex Youth
When making housing and other service assignments for transgender or intersex youth, care provides must consider the youth’s gender self-identification and the effects of housing and service assignments on the youth’s health and safety.  Care providers must not base housing and other service assignment decisions of transgender and intersex youth solely on identity documents (e.g., official U.S. or foreign government documents, birth certificates, etc.) or the physical anatomy of the youth.  The child’s self-identification of his or her gender and 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 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 or restroom schedule.  The care provider should contact the ORR/FFS for further guidance if the care provider is uncertain about the appropriate steps to take. 

One-On-One Supervision
Care providers may not use the results of the Assessment for Risk to place a child on one-on-one supervision unless there are exigent circumstances that require it to keep the child or youth, other children or youth, or staff safe.  An exigent circumstance is any set of temporary or unforeseen circumstances that require immediate action in order to combat a threat to the security of the care provider facility or a threat to the safety and security of any person.  This does not restrict a care provider’s ability to place a child or youth on one-on-one supervision for other reasons, such as a medical quarantine.

If a child or youth is placed on one-on-one supervision because of exigent circumstances as a result of this assessment, the care provider may only keep the minor on one-on-one supervision until an alternative means of keeping all children, youth, and staff safe can be arranged.  Care providers must document in the child’s case file all actions taken as a result of this assessment, including placing the child on one-on-one supervision and the exigent circumstance that required it.  Placing a child on one-on-one supervision does not include physically separating the child from other minors but means providing the child direct line-of-sight-and-sound supervision by an individual staff member.  During any period of one-on-one supervision, care providers must provide the child all required services.  Care providers must ensure that any child or youth on one-or-one supervision receives daily reviews by a Clinician.  Before taking a child off of one-on-one supervision, the care provider must create an in care safety plan for the child.  Care providers may never isolate or involuntarily segregate children solely because of their sexual orientation, gender identity, or gender expression.

Posted 6/22/15

4.9 Medical and Mental Health Care

ORR provides routine and emergency medical and mental health care for all unaccompanied alien children in its care, including an initial medical examination, any appropriate follow-up care, and weekly individual and group counseling sessions with care provider Clinicians.  If a child is sexually abused while in ORR care, the care provider must ensure that the child is offered and/or provided, with specific medical and mental health care services. 

This section applies to all care provider facilities, including secure care providers and long term foster care providers.

Posted 6/22/15

4.9.1 Emergency Medical and Mental Health Care Services Following an Incident of Sexual Abuse

If a child is sexually abused while in ORR care, the care provider must ensure the child is provided immediate, unimpeded access to the following:

  • Emergency medical treatment at a local hospital or urgent care facility;
  • Crisis intervention services in accordance with Section 4.5;
  • Emergency contraception; and
  • Sexually transmitted infections prophylaxis.

These services must be provided in accordance with professionally accepted standards of care, where appropriate under medical or mental health professional standards.

Emergency Contraception
When an allegation involves penetration, no matter how slight, of the vagina with any body part, the care provider must ensure that the child victim is provided information on emergency contraception within 24 hours of the incident; and has access to lawful emergency contraception within 72 hours.  To ensure the minor makes an informed decision, care provider staff should engage the minor in discussions with a medical provider, family member, and/or attorneys of record to provide complete and comprehensible information about the types of emergency contraception available and the risks and benefits of each.  Care provider facilities must follow applicable Federal and State laws regarding parental consent and notification.

Sexually Transmitted Infections Prophylaxis
Care providers must ensure that unaccompanied alien children who are victims of sexual abuse that occurred while in ORR care and custody are offered tests for sexually transmitted infections when the allegation involves oral, genital, or anal contact by or to another person.

Care providers must ensure the minor is provided complete and comprehensible information about the types of sexually transmitted infections prophylaxis available to ensure the youth makes an informed decision.  Care provider facilities must follow applicable State laws regarding age of consent, parental consent, and parental notification for sexually transmitted infections testing.

Posted 6/22/15

4.9.2 Medical Services for Victims at Risk of Pregnancy

If a minor is sexually abused while in ORR care, care providers must ensure that victims who are at risk of pregnancy are offered pregnancy tests when the allegation involves penetration, no matter how slight, of the vagina with any body part.

If pregnancy results from an instance of sexual abuse, the care provider must ensure that the victim receives comprehensive information about all lawful pregnancy-related medical services within 24 hours of the positive pregnancy test.  Care providers also must ensure the victim has access to all lawful pregnancy-related medical services within the time frame the services may be provided under applicable State laws.

To ensure the minor makes informed decisions, care provider staff should engage the minor in discussions with medical providers, family members, and/or attorneys of record to understand the risks and benefits of pregnancy-related medical services.  Care provider facilities must follow applicable State laws regarding age of consent, parental consent, and parental notification. If parental consent or notification is not required by State law, care provider staff should still encourage the minor to involve parents or family members in the decision-making process.

Posted 6/22/15

4.9.3 Ongoing Medical and Mental Health Care

Care providers must offer ongoing medical and mental health evaluations and treatment to all unaccompanied alien children who are victimized by sexual abuse or sexual harassment while in ORR care and custody.  The evaluation and treatment of victims must include, as appropriate, follow-up services, treatment plans, and, when necessary, referrals for continued care following their transfer to or placement in other care provider facilities or their release from ORR care and custody.  The care provider must provide victims with medical and mental health services consistent with the community level of care.

The care provider must conduct a mental health evaluation of all known minor-to-minor abusers within 72 hours of learning of such abuse and/or abuse history and offer treatment when deemed appropriate by mental health practitioners.

Posted 6/22/15

4.9.4 Religious Objections

If a care provider has a religious objection to providing information for and/or access to any of the required services for a child victim of sexual abuse as outlined in this policy, the care provider must immediately notify its ORR/PO, ORR/FFS, and the ORR/PSA Coordinator.  The care provider must work with ORR to put in place a plan to ensure every child victim will be provided all required information and services in an equal, fair, and timely manner that is respectful to the principles and beliefs of the care provider.  The plan must be pre-approved by ORR.

Posted 6/22/15

4.10 Reporting and Follow-up

This section discusses care provider requirements to report sexual abuse, sexual harassment, and inappropriate sexual behavior occurring in ORR care, any retaliatory actions resulting from reporting allegations, and staff neglect or violations of responsibilities that have contributed to incidents. The ability of unaccompanied alien children, staff, volunteers, and contractors to freely and immediately report sexual abuse, sexual harassment, and inappropriate sexual behavior is essential for the protection and safety of all children at a care provider. This section applies to all care providers, including secure and long term foster care providers and individual foster homes.

Revised 3/21/16

4.10.1 Methods for Children and Youth to Report

ORR is committed to providing multiple, easily accessible methods for children and youth to report sexual abuse, sexual harassment, and inappropriate sexual behavior. The care provider must develop policies and procedures to ensure that minors, including minors with disabilities and minors with limited English proficiency, have multiple ways to report the following:

  • Sexual abuse, sexual harassment, or inappropriate sexual behavior;
  • Retaliation for reporting sexual abuse, sexual harassment, or inappropriate sexual behavior; and
  • Staff neglect or violations of responsibilities that may have contributed to incidents of sexual abuse, harassment, or inappropriate sexual behavior.

The care provider’s policies and procedures must include provisions for staff to accept reports made verbally, in writing, anonymously, and via a grievance. Staff must promptly document any verbal reports.

In accordance with section 4.7 Educating Children and Youth, care providers must provide youth access and instructions on how youth may report incidents to:

  • Care provider staff;
  • Child Protective Services (CPS);
  • The UAC Sexual Abuse Hotline;
  • A local community service provider or national rape crisis hotline if a local provider is unavailable; and
  • Consular officials.

The care provider must ensure that the local community service provider or rape crisis hotline is able to immediately forward reports of sexual abuse and harassment to ORR.

Care providers must provide unaccompanied alien children access to telephones with preprogrammed numbers for the UAC Sexual Abuse Hotline, CPS, and the local community service provider or national rape crisis hotline.  Care providers should include other preprogrammed telephone numbers, such as telephone numbers for consulates or a legal service provider, in order to avoid any stigma in using the preprogrammed telephones.  Preprogrammed telephones must be placed in areas of the facility where children may easily access them without assistance from staff but where they are also afforded some level of privacy so that other children and staff cannot easily listen to telephone conversations.  The care provider must ensure that all youth are taught how to access and use preprogrammed telephones as part of educational sessions when describing available reporting methods.

Secure care providers may have modified requirements for preprogrammed telephones to ensure the security of the facility.  Secure care providers seeking a modification must obtain approval from their assigned Project Officer.

Grievances
All care providers must have a grievance process to handle any type of complaint or grievance a child may have. Children and youth may use the care provider’s current grievance process to report sexual abuse, sexual harassment, and inappropriate sexual behavior to the care provider.

Care providers must implement policies and procedures to identify and handle time-sensitive incidents reported through a grievance that involve an immediate threat to the health, safety, or welfare of a child or youth. In the case of medical emergencies, staff must ensure the minor receives proper medical attention for further assessment. This may include providing the minor with an assessment by a qualified health practitioner or calling emergency services when appropriate.

Although the care provider must issue a written decision or response to the grievance within 5 days of receipt, all allegations of sexual abuse or harassment reported via a grievance must be immediately responded to in accordance with the reporting policies described below. If the grievance involves an immediate threat to the health, safety, or welfare of an unaccompanied alien child, the care provider must immediately respond as needed.

Youth may obtain assistance from another youth, care provider staff, family members, or legal representatives to prepare a grievance. Care provider staff must take reasonable steps to expedite requests for assistance from these other parties.

Revised 3/21/16

4.10.2 Care Provider Reporting Requirements

Care provider staff, volunteers, and contractors must immediately report the following to all appropriate investigating entities as described below:

  • Any knowledge, suspicion, or information regarding an incident of sexual abuse, sexual harassment, or inappropriate sexual behavior;
  • Retaliation against children, staff, volunteers, or contractors for reporting an incident of sexual abuse, sexual harassment, or inappropriate sexual behavior; and
  • Any staff neglect or violation of responsibilities that may have contributed to an incident or retaliation.

Care providers must have written reporting policies and procedures that are approved by ORR.

Reporting to State and Local Authorities
In accordance with mandatory reporting laws, State licensing requirements, Federal laws and regulations, and ORR policies and procedures, the above must be reported immediately but no later than 4 hours after learning of the allegation to:

  • The State licensing agency;
  • CPS; and/or
  • Local law enforcement.

If the State licensing or CPS agency directly reports an allegation to local law enforcement, the care provider does not need to make a separate report but must confirm and document when such a report has been made. Care providers must report allegations of sexual abuse involving an adult to local law enforcement, regardless of whether State licensing or CPS reports the allegation.

Care providers must report allegations of sexual abuse involving an adult to local law enforcement.  If the State licensing or CPS agency directly reports an allegation to local law enforcement, the care provider does not need to make a separate report but must confirm and document when such a report has been made.

Care providers must maintain or attempt to enter into a written memorandum of understanding or other agreement specific to investigations of sexual abuse and harassment with CPS, the State licensing agency, and the local law enforcement agency. Care providers must maintain a copy of the agreement or documentation showing attempts to enter into an agreement.

Reporting to ORR
Care providers must report immediately but no later than 4 hours after learning of the allegation any knowledge, suspicion, or information regarding an incident of sexual abuse, sexual harassment, or inappropriate sexual behavior; retaliation; or staff neglect/violation of responsibilities that occurs in ORR care via the Sexual Abuse Significant Incident Report (SA/SIR). Allegations of prior sexual abuse and harassment that occurred in the minor’s home country, during the journey to the U.S., in the U.S., in DHS custody, or in any other context must be reported to ORR via the Significant Incident Report (SIR) according to ORR’s policies and procedures.3

Care providers must use the official SA/SIR for the timely reporting and documentation of allegations of sexual abuse, sexual harassment, and inappropriate sexual behavior that occur in ORR care. Care providers must ensure that SA/SIRs include sufficient detail regarding the incident, including a list of witnesses, the reporter, and all parties involved. Care providers must create an Addendum to an existing SA/SIR when information in the original SA/SIR was incorrect, incomplete, or new or more detailed information has become available since the care provider submitted the original report. Care providers must submit an SA/SIR Addendum within 24 hours of learning of incorrect, incomplete, or new information.

An SA/SIR must be filed for each child involved in an incident, and multiple SA/SIR Addendums may be required to provide all updated and additional information. SA/SIRs must not be provided to any outside entity or individual unless it is expressly stated in this policy, or the care provider obtained prior permission from ORR.

Care providers must submit a completed SA/SIR to ORR immediately but no later than 4 hours after becoming aware of the allegation and maintain a copy in the child’s case file. The SA/SIR and any SA/SIR Addendums must be sent to:

  • Project Officer
  • Federal Field Specialist
  • Case Coordinator
  • Contract Field Specialist

If a victim of sexual abuse is transferred between ORR care providers, the ORR/FFS must inform the receiving care provider of the incident and the victim’s need for medical and/or other services and follow-up care to the extent necessary.

Reporting to the Federal Bureau of Investigation (FBI)
Care providers must report immediately but no later than 4 hours after learning of an allegation of sexual abuse as defined in 34 U.S.C. § 20341 to the FBI. Care providers must submit a completed SA/SIR to the FBI, HHS’ Office of the Inspector General (OIG), and to ORR’s SA/SIR mailbox. The SA/SIR must include, at a minimum, the following information:

  • A summary of the alleged abuse;
  • Date of the alleged incident;
  • Date of the report;
  • Names and contact information for potential witnesses;
  • Names and contact information for appropriate contacts at the care provider; and
  • Relevant contact information for all other parties receiving the report, including but not limited to:
    - CPS;
    - The State licensing agency; and
    - Local law enforcement.

For any incident that is reported to the FBI, all related SA/SIR Addendums should be reported to OIG and to ORR’s SA/SIR mailbox. SA/SIR Addendums should not be reported to the FBI.

Reporting an Allegation of Sexual Abuse or Harassment that Occurred at Another Care Provider
Upon receiving an allegation that a child was sexually abused or harassed at another care provider, the care provider that received the allegation must report the allegation to CPS and State licensing and to ORR according to the reporting procedures described above. The care provider must report the allegation to both the CPS and State licensing agencies where the abuse or harassment occurred and to the CPS and State licensing agency where the care provider making the report is located, if the care providers are located in different states. ORR will then notify the care provider where the alleged abuse or harassment occurred. The receiving care provider must then take all appropriate actions to protect the health and safety of any minors involved in the incident that are still at the facility and make all appropriate reports in accordance with ORR reporting policies and procedures.

QUICK REFERENCE CHART: Reporting Incidents Related to Sexual Abuse and Sexual Harassment

NOTE:  The chart is intended as a quick reference guide and does not cover every type of reportable incident.

TYPE OF INCIDENT CARE PROVIDER REPORTING REQUIREMENTS
Incidents that Occurred in ORR Care
Sexual Abuse in ORR Care
  1. Report to CPS and/or state licensing in the state of the reporting care provider
  2. Report to CPS and/or state licensing in the state where the allegation took place, if in a different state
  3. Report to local law enforcement if the perpetrator is an adult or if required by state licensing
  4. Send an SA/SIR to the FBI within 4 hours by emailing VCACU_ORR_Reporting@ic.fbi.gov
  5. Send an SA/SIR to HHS/OIG within 4 hours by emailing UAC@oig.hhs.gov
  6. Submit an SA/SIR to ORR within 4 hours by emailing PSAC@acf.hhs.gov and appropriate ORR staff
Sexual Harassment in ORR Care
  1. Report to state licensing according to state licensing requirements
  2. Submit an SA/SIR to ORR within 4 hours
Inappropriate Sexual Behavior in ORR Care
  1. Report to state licensing according to state licensing requirements
  2. Submit an SA/SIR to ORR within 4 hours
Incidents that Did Not Occur in ORR Care
Sexual Abuse that Occurred in the United States (but not in ORR care)
  1. Report to CPS and/or state licensing according to state licensing requirements
  2. Report to local law enforcement according to state licensing requirements
  3. Submit an SIR to ORR within 4 hours by emailing PSAC@acf.hhs.gov and appropriate ORR staff
Sexual Abuse that Occurred Outside the United States
  1. Report to CPS and/or state licensing according to state licensing requirements
  2. Submit an SIR to ORR within 4 hours
Sexual Abuse that Occurred in DHS Custody
  1. Report to CPS in the state of the reporting care provider according to state mandatory reporting laws
  2. Report to CPS in the state where the allegation took place, if in a different state, according to state mandatory reporting laws
  3. Submit an SIR to ORR within 4 hours by emailing PSAC@acf.hhs.gov and appropriate ORR staff

Revised 1/07/19

4.10.3 Sexual Abuse and Harassment Follow-up

Care providers must remain informed of and track any CPS, State licensing, and/or local law enforcement investigation that results from reports of sexual abuse and harassment and cooperate with all investigating authorities. Communications from these agencies, particularly information regarding the investigation, must be documented and retained by the care provider and provided to ORR via an SA/SIR or SA/SIR Addendum. Care providers must attach to the SA/SIR any documentation received from any investigating agency or issued by the care provider, such as a warning to staff or termination letter. Additionally, care providers must respond immediately to information requests from ORR regarding the incident.

After an investigation by appropriate investigating authorities is complete, the ORR/FFS must notify the victim of the result of the investigation if the minor is still in ORR care. If the minor has been released when the investigation is completed, the ORR/FFS should attempt to notify the minor at his/her last known address. The ORR/FFS should notify the investigating agency of any individuals involved in the incident, such as other complainants or other additional parties and encourage the investigating agency to notify the other individuals involved.

Revised 3/21/16

4.10.4 Notification and Access to Attorneys/Legal Representatives, Families, Child Advocates, and Sponsors

Notification and Access to Attorneys and Legal Service Providers
If a minor has an attorney of record, the care provider must notify the attorney of any allegations of sexual abuse or harassment that occur in ORR care within 48 hours, provided the child consents to the disclosure of information and is 14 years old or older. If a child does not have an attorney of record and is 14 years old or older, the care provider must inform the child that the allegation may affect his/her eligibility for immigration relief and ask whether the minor would like to speak with an attorney. If the child agrees, the care provider must notify its local legal service provider within 48 hours of the allegation. If the child is under 14 years old, the care provider must notify the child’s attorney of record or the local legal service provider. If the child has a diagnosed developmental disability and is 14 years old or older, the care provider must notify its ORR/FFS prior to asking the child for consent to notify the child’s attorney of record or asking whether the child would like to speak with a local legal service provider. Care providers must provide a notification only and may not send SA/SIRs.

Figure 4.10.1: Notification to Attorneys and Legal Service Providers

Minor’s Age Does the Minor Have an Attorney of Record? Care Provider Requirements
14 Years Old or Older Yes Follow minor’s decision
14 Years Old or Older No 1. Inform minor that the allegation may affect the minor’s eligibility for immigration relief
2. Ask whether the minor would like to speak with an attorney
3. Follow minor’s decision
14 Years Old or Older with a Diagnosed Developmental Disability Yes or No Notify the ORR/FFS prior to speaking with the minor
Under 14 Years Old Yes or No Notify the minor’s attorney of record or if the minor does not have an attorney of record the local legal service provider

Care providers must ensure minors have access to their attorney or other legal representative in accordance with the care provider’s attorney-client visitation policies and procedures. These visitation policies and procedures must include provisions for immediate access in the case of an emergency or exigent circumstance. The care provider’s attorney-client visitation policies and procedures must be approved by ORR to ensure the policies and procedures are reasonable and appropriate.

Notification and Access to Families and Sponsors
Care providers must notify a child’s parent or legal guardian of any allegations of sexual abuse or harassment that occur in ORR care within 48 hours unless the care provider has evidence showing the parents or legal guardians should not be notified or the victim is 14 years old or older and does not consent to the disclosure. If a minor is released to a sponsor or a non-ORR facility, care providers must notify the sponsor or receiving facility of the incident and the victim’s potential need for medical and/or social services unless the child is 14 years old or older and does not consent to the disclosure. If the child is under 14 years old, the care provider must notify the ORR/FFS to ensure disclosure to a child’s parent, legal guardian, sponsor, or receiving facility is safe. If the child has a diagnosed developmental disability and is 14 years old or older, the care provider must notify its ORR/FFS prior to asking the child for consent to notify the child’s parent or legal guardian, sponsor, or receiving facility. Care provider facilities must ensure children have access to their families, including legal guardians, unless ORR has documentation that certain family members or legal guardians should not be provided access due to safety concerns. Care providers must provide a notification only and may not send SA/SIRs.

Figure 4.10.2: Notification to Parents/Legal Guardians and Sponsors

Minor’s Age Care Provider Requirements
14 Years Old or Older 1. Follow minor’s decision whether to notify the parent or legal guardian unless there is evidence showing they should not be notified
2. Follow the minor’s decision whether to notify the sponsor or receiving facility, if different from the parent or legal guardian
14 Years of Age or Older with a Diagnosed Developmental Disability Notify the ORR/FFS prior to speaking with the minor
Under 14 Years of Age 1. Notify the minor’s parent or legal guardian unless there is evidence showing they should not be notified
2. Notify the minor’s sponsor or receiving facility, if different from the parent or legal guardian

Notification to Child Advocates
Care providers must notify, if applicable, child advocates of any allegations of sexual abuse or harassment that occur in ORR care within 48 hours if the minor is 14 years old or older and consents to the disclosure. If the minor is under 14 years old, the care provider must notify the child advocate, if applicable. If the minor has a diagnosed developmental disability and is 14 years of age or older, the care provider must notify the ORR/FFS prior to asking the child for consent to notify the minor’s child advocate, if applicable. Care providers must notify child advocates of incidents by sending a copy of the SA/SIR.

Figure 4.10.3: Notification to Child Advocates

Minor’s Age Care Provider Requirements
14 Years Old or Older Follow minor’s decision
14 Years of Age or Older with a Diagnosed Developmental Disability Notify the ORR/FFS prior to speaking with the minor
Under 14 Years of Age Notify the minor’s child advocate

Revised 3/21/16

4.10.5 Confidentiality

Care providers must ensure that any information related to a sexual abuse or harassment report is protected and kept confidential within the care provider facility and is only disclosed to the extent necessary for medical and mental health treatment, investigations, notice to local law enforcement, or for other security and management decisions. 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 children.

Posted 9/28/15

4.10.6 UC Sexual Abuse Hotline

Any child or third party, including family members, sponsors, legal service providers, child advocates, and any other individual with knowledge or suspicion of sexual abuse or harassment occurring at a care provider may report allegations of sexual abuse and harassment to the UAC Sexual Abuse Hotline at 1-855-232-5393.

ORR will immediately notify the care provider, CPS, the State licensing agency, and/or the Department of Justice and the HHS Office of the Inspector General, as appropriate, of any allegations received directly from any child or third party. The care provider must immediately follow-up to ensure all children and youth are safe and provided with appropriate services and that all required reports to ORR and outside entities are completed in accordance with this section.

Revised 3/21/16

4.11 Incident Reviews and Data Collection

This section covers requirements related to sexual abuse and sexual harassment incident reviews and data collection. This section applies to all care provider facilities, including secure facilities and long-term foster care.

Posted 7/08/19

4.11.1 Incident Reviews

Care provider facilities must conduct incident reviews of all allegations of sexual abuse and sexual harassment that occur in ORR care and custody. Incident reviews are internal reviews completed by care provider facilities and are separate from investigations completed by an oversight entity (i.e., by CPS, a state or local licensing authority, or law enforcement). Incident reviews provide care provider facilities the opportunity to review an incident and determine whether any change in policy, procedure, or practice could prevent a similar incident from occurring again. Incident reviews ensure that care provider facilities and ORR develop best practices to better prevent, detect, and respond to sexual abuse and sexual harassment.

A care provider facility’s incident review team should be multi-disciplinary and include staff involved in detecting, reporting, and responding to an incident. This may include first responders, medical and mental health practitioners, security staff, and facility leadership. The incident review team must include the care provider facility’s Prevention of Sexual Abuse (PSA) Compliance Manager.

Incident reviews must be conducted within 30 days of the conclusion of every investigation of sexual abuse and sexual harassment completed by an oversight entity. Incident reviews must not interfere with any ongoing investigation. The goals of an incident review are to:

  • Identify any ways in which the incident could have been prevented;
  • Ensure appropriate actions were taken to protect the victim and provide follow up services;
  • Ensure appropriate actions were taken for the perpetrator to protect the victim and other children and staff at the facility; and
  • Consider whether any policies or procedures can be improved or changed in light of the allegation or incident.

Posted 7/08/19

Written Incident Reviews

Care provider facilities must provide a written incident review report for certain types of sexual abuse and sexual harassment incidents. Written incident reviews collect specific information about the incident, including information about when and where the incident occurred, actions taken with regard to the perpetrator, and services provided to and actions taken for the victim. The completed incident review must include recommendations for changes in policy, procedures, or practices that could lead to improvements in preventing, detecting, and responding to sexual abuse and sexual harassment in the future. These recommendations may result from the internal review or from an outside investigation. The care provider facility must implement the recommendations included in the incident review or document why it is unable to do so. 

Care provider facilities must conduct an incident review and complete an incident review form within 30 days of the conclusion of every investigation by an oversight entity of minor-on-minor sexual abuse or sexual harassment where the allegation was substantiated or unsubstantiated. Please see the definitions section below for more information on when an allegation is considered substantiated or unsubstantiated.

For allegations of sexual abuse and sexual harassment involving an adult (i.e., staff or non-staff adults), care provider facilities must conduct an incident review and complete an incident review form within 30 days of the conclusion of any investigation or 60 days after reporting the allegation. Care provider facilities must subsequently update the initial incident review every 90 days as appropriate until the conclusion of all investigations by oversight entities.

For allegations of inappropriate sexual behavior involving an adult, care provider facilities must conduct an incident review and complete an incident review form within 30 days of the conclusion of every investigation by an oversight entity where the allegation was substantiated or unsubstantiated.

The completed incident review form must be forwarded to ORR’s Prevention of Sexual Abuse Coordinator. ORR will review the care provider facility’s incident review and any attached investigation reports to determine whether additional action is required, including monitoring, compliance audits, or corrective actions.

Definitions

A substantiated allegation is an allegation that was formally investigated and determined to have occurred. For example, an outside investigative entity determined there was sexual abuse sexual harassment or determined the allegation did occur.

An unsubstantiated allegation is an allegation that was formally investigated and the investigation produced insufficient evidence to make a final determination as to whether or not the event occurred. Allegations may be unsubstantiated for a variety of reasons, including lack of evidence or that a victim refuses to cooperate or is unavailable.

An unfounded allegation is an allegation that was formally investigated and determined not to have occurred. For example, an allegation was investigated but an outside investigative entity determined abuse did not occur or the allegation did not occur, even if a deficiency was issued related to another licensing requirement. 

An allegation is administratively closed if a state agency did not complete a formal investigation. After conducting an initial review, a state agency may administratively close a case for a number of reasons, including when the allegation does not meet the criteria for a formal investigation, lack of jurisdiction or lack of information about the alleged perpetrator.

Posted 7/08/19


4.12 Compliance Audits

This section outlines a care provider facility’s responsibilities during a compliance audit and explains the auditor certification process. This section applies to all care provider facilities, except long-term foster care, secure facilities, and influx facilities.  Secure facilities are subject to the audit process described in the U.S. Department of Justice’s National Standards to Prevent, Detect, and Respond to Prison Rape, 28 CFR part 115.

Posted 12/10/18

4.12.1 Compliance Audit Process

Compliance audits determine a care provider facility’s compliance with standards in the IFR and relevant ORR policies and procedures during the preceding 12 months. Each care provider facility must undergo a compliance audit by February 22, 2019, as required by the IFR. After February 2019, care provider facilities must be undergo a compliance audit once every three years. ORR may expedite a compliance audit for a particular care provider facility that is experiencing problems related to sexual abuse or sexual harassment. For example, ORR may expedite a compliance audit after a particularly serious or egregious incident of sexual abuse at a care provider facility.

Auditors request relevant information and documentation before beginning a compliance audit. Auditors review policies and a sampling of relevant documents and records, such as SA/SIRs or video footage, during the audit. During the onsite visit, auditors tour the facility and interview a representative sample of unaccompanied alien children and staff.  Auditors also work with the FFS to solicit input from members of the community who may have relevant information regarding the care provider facility.

For each standard in the IFR, auditors determine whether a care provider facility reaches one of the following findings:

  • Exceeds standard (substantially exceeds requirement of standard)
  • Meets standard (substantial compliance; complies in all material ways with the standard for the relevant review period)
  • Does not meet standard (requires corrective action)

Care provider facilities bear the affirmative burden of demonstrating to the auditor compliance with IFR standards and relevant ORR policies and procedures. After completing a compliance audit, the auditor produces a report indicating whether the care provider facility’s policies and procedures comply with the IFR standards and relevant ORR policies and procedures.

ORR and the auditor develop a corrective action plan if a care provider facility receives a finding of “does not meet standard.” The purpose of the corrective action plan is to ensure that the care provider facility achieves compliance with the standard. The care provider facility has 90 days to comply with the corrective action plan. After the 90-day corrective action period, the auditor issues a final determination.

A care provider facility may appeal a specific audit finding that it believes is incorrect. To request an appeal, the care provider facility must contact ORR’s Prevention of Sexual Abuse Coordinator within 90 days of the auditor’s final determination. If ORR determines there is good cause for re-evaluation, the care provider facility is re-audited by a mutually agreed upon auditor. The care provider facility is responsible for the costs of the re-audit. The findings of the re-audit are final.

Posted 12/10/18

4.12.2 Care Provider Facility Responsibilities

Care provider facilities must be responsive to and work with auditors in scheduling an audit. Additionally, care provider facilities must do the following during a compliance audit:

  • Provide the auditor with access to all areas of the care provider facility;
  • Provide all relevant documentation requested by the auditor;
  • Provide space to the auditor for interviews of staff and unaccompanied alien children;
  • Allow the auditor to conduct private interviews with unaccompanied alien children; and
  • Allow unaccompanied alien children to send confidential information or correspondence to the auditor.

The auditor must retain all the documentation reviewed during the compliance audit. The auditor takes appropriate measures to safeguard sensitive information. The care provider facility is not provided with confidential information related to an audit, such as interviews with staff or youth. The auditor must provide all documentation and information related to an audit to ORR upon request.  The auditor must, however, have independent authority to conduct an audit and to draw their own conclusions about the facility’s compliance.

Posted 12/10/18

4.12.3 Auditor Certification

Auditors must have relevant monitoring, evaluation, and/or child welfare experience. When possible, auditors should be proficient in Spanish.

In order to prevent a conflict of interest all auditors must be external to ORR.  Additionally, no individual may audit a care provider facility if the individual has received financial compensation from that care provider facility, the care provider’s agency, or ORR (except for compensation for conducting reviews) within three years prior to becoming an ORR auditor.

Training
Prior to certification, auditors must complete an ORR-approved training, which covers each of the standards in the IFR, including ORR’s zero tolerance policies; definitions and examples of sexual abuse, sexual harassment, and inappropriate sexual behavior; and procedures for reporting allegations of sexual abuse, sexual harassment, or inappropriate behavior. The training also covers the following topics:

  • Building competency regarding the culture and age of unaccompanied alien children;
  • Communicating effectively and professionally with unaccompanied alien children, including unaccompanied alien children who are lesbian, gay, bisexual, transgender, questioning, or intersex;
  • Understanding past trauma that unaccompanied alien children may have experienced;
  • Recognizing situations where sexual abuse, sexual harassment, and inappropriate sexual behavior may occur; and
  • Recognizing physical, behavioral, and emotional signs of sexual abuse.

Background Investigations
Prior to certification, each auditor must undergo a background investigation, the scope of which complies with ORR’s minimum requirements described in Section 4.3.2. ORR does not certify as an auditor any individual who has engaged in, attempted to engage in, or has been civilly or administratively adjudicated to have engaged in sexual abuse, sexual harassment, or any type of inappropriate sexual behavior. ORR does not certify as an auditor any applicant who, as an adult, perpetrated any crime involving a child, regardless of how long ago the incident occurred, or any violent crime within the past 10 years.

Auditors have a continuing affirmative duty to disclose any misconduct that arises after certification, whether the conduct occurs on or off duty.  Misconduct includes but is not limited to any criminal behavior, abuse, and/or neglect investigation, charge, arrest, civil adjudication, administrative adjudication, or conviction.

Certification Process
To be certified to perform ORR compliance audits, auditors must submit the following documentation to ORR’s Prevention of Sexual Abuse Coordinator:

  • Resume;
  • Conflict of interest form;
  • Background check documentation; and
  • Documentation that the applicant completed required training.

ORR reviews the submitted documentation and makes a determination regarding the applicant’s suitability to conduct compliance audits.

Posted 12/10/18


Footnotes

1. In order to preserve the integrity of the exam, if the allegation of abuse is against a care provider facility employee, forensic examinations should be conducted by an outside provider.

2. If a care provider facility must adjust its staff-children ratios to meet this requirement and the adjustment increases a care provider facility’s current budget, then the care provider facility may request an exemption from this requirement until the start of fiscal year 2016. The care provider facility must obtain written approval from its assigned Project Officer for this exemption. During the exemption period, care provider facilities must continue following their state licensing minimum requirements.

3. Please see 5.8 Significant Incident Reports and Notification Requirements.


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Last Reviewed: July 8, 2019