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HHS Finalizes Rule to Strengthen Services and Protections for Unaccompanied Children in Its Care

The U.S. Department of Health and Human Services’ Administration for Children and Families (ACF) displayed its Unaccompanied Children Program Foundational Rule, which sets clear standards and protections and enhances the legal framework governing the Office of Refugee Resettlement’s (ORR) Unaccompanied Children (UC) Program.

“The Foundational Rule underscores HHS’ unwavering commitment to the health, safety, and welfare of unaccompanied children in our care,” said HHS Secretary Xavier Becerra. “By enhancing the legal framework governing the UC Program, we set clear standards for the care and treatment of unaccompanied children in ORR’s custody and the support they receive as they transition into new communities.”

The final rule implements and goes beyond the 1997 Flores Settlement Agreement (FSA) by incorporating the provisions applicable to ORR, such as standards for placement and release of unaccompanied children, emergency and influx operations, transportation, and monitoring requirements.

“The Foundational Rule exceeds the requirements of the Flores Settlement Agreement by codifying existing and new policies and practices to promote the safety and well-being of unaccompanied children in ORR’s custody,” said ACF Principal Deputy Assistant Secretary, Jeff Hild. “Prime examples of this are the creation of an independent Ombuds Office and setting minimum services that must be provided at emergency or influx facilities, which the Flores Settlement Agreement only required for standard care facilities.”

Since 2003, when the Homeland Security Act transferred responsibility for the care and custody of unaccompanied children to ORR, the UC Program has expanded its services for unaccompanied children. The program’s growth includes improvements in sponsor screening, advancements in technology and data analysis, building a skilled workforce experienced in child welfare best practices and a diverse network of care providers, and an expansion of post-release and legal services, all of which have enabled ORR to serve all referred children and meet the increasing demands of caring for this vulnerable population.

This final rule reflects this progress, allowing ORR to create and implement policies tailored to today’s unaccompanied children demographics, with increased accountability, transparency, and consistency in upholding the highest standards of care.

Key elements of the UC Program Foundational Rule include:

Establishment of The Ombuds Office: The rule establishes an independent Ombuds Office to receive, investigate, and address concerns about government actions in the UC Program. This regulatory framework is aligned with congressional recommendations for enhanced HHS oversight of UC Program operations.

Refined Placement and Release Processes: The rule outlines detailed criteria for placement of children in various types of care provider facilities, prioritizing the least restrictive setting appropriate to each child’s age and needs. It also finalizes policies and procedures regarding the safe and timely release of unaccompanied children to vetted and approved sponsors.

Strengthened Legal and Privacy Protections: The rule strengthens and expands, subject to Congressional appropriations, unaccompanied children’s access to legal, post-release, and language services necessary for child well-being and compliance with immigration proceedings. It also bolsters children’s privacy rights, underscoring confidentiality in handling case files.

Comprehensive Healthcare and Educational Services: The rule enshrines ORR’s commitment to providing comprehensive healthcare and educational services, including mental health support and classroom education.

Minimum Standards for Emergency and Influx Facilities: The rule updates the definition of “influx” to reflect current migration patterns and ORR’s operational capacity, so that emergency facilities are used appropriately and as a last resort. The rule also goes beyond the requirements of the Flores Settlement Agreement by establishing minimum services that must be provided to unaccompanied children at Emergency and Influx Facilities.

Updated Definitions and Enhanced Standards: The rule includes updated definitions and standards for care provider facilities, ensuring clarity and inclusiveness in the services provided to unaccompanied children. It emphasizes the use of licensed facilities and the implementation of child-centered, trauma-informed care principles across all programs.

The final rule displayed today was informed by extensive feedback from various stakeholders, including Members of Congress, legal and social service providers, non-governmental organizations, and tens of thousands of individuals who shared their comments during the 60-day public comment period following the release of the proposed rule in October 2023.

“This is a momentous achievement that supports ORR in fulfilling its legal responsibility to provide for the care of all unaccompanied children referred to it until they are appropriately and safely released to a vetted sponsor,” said Deputy Assistant Secretary for Humanitarian Services and ORR Director Robin Dunn Marcos. “We are proud that the final rule, which enhances the transparency of our operations and policies, is the result of an open and very engaged process and reflects the input shared by thousands during the public comment period.”

The final rule is available to review here.