[Federal Register Volume 71, Number 31 (Wednesday, February 15, 2006)]
[Rules and Regulations]
[Pages 8064-8161]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-1067]
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Part II
Department of State
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22 CFR Parts 96, 97, and 98
Hague Convention on Intercountry Adoption; Intercountry Adoption Act of
2000; Accreditation of Agencies; Approval of Persons and Intercountry
Adoption[m'dash]Preservation of Convention Records; Final Rules
Federal Register / Vol. 71, No. 31 / Wednesday, February 15, 2006 /
Rules and Regulations
[[Page 8064]]
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DEPARTMENT OF STATE
22 CFR Part 96
[Public Notice 5296]
RIN 1400-AA-88
Hague Convention on Intercountry Adoption; Intercountry Adoption
Act of 2000; Accreditation of Agencies; Approval of Persons
AGENCY: Department of State.
ACTION: Final rule.
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SUMMARY: The Department of State (the Department) is issuing a final
rule on the accreditation and approval of agencies and persons in
accordance with the 1993 Hague Convention on Protection of Children and
Co-operation in Respect of Intercountry Adoption (the Convention) and
the Intercountry Adoption Act of 2000 (the IAA), after review of public
comments received in response to the Department's September 15, 2003
issuance of a proposed rule. The Convention and the IAA generally
require that agencies and persons be accredited or approved to provide
adoption services for intercountry adoptions when both countries
involved are parties to the Convention, and the IAA requires that the
Department designate one or more qualified accrediting entities to
accredit and approve agencies and persons. Today's new action
establishes the accreditation and approval standards for agencies and
persons that accrediting entities will use; establishes requirements
applicable to potential accrediting entities; and establishes a
framework for the Department's oversight of accrediting entities,
agencies, and persons. This action is a necessary step toward bringing
the Convention into force for the United States.
DATES: This rule is effective March 17, 2006. Information about the
date the Convention will enter into force is indicated in the text of
the final rule.
FOR FURTHER INFORMATION CONTACT: Corrin Ferber at 202-736-9172 or Anna
Mary Coburn or Lisa Vogel at 202-736-9081. Hearing- or speech-impaired
persons may use the Telecommunications Devices for the Deaf (TDD) by
contacting the Federal Information Relay Service at 1-800-877-8339.
SUPPLEMENTARY INFORMATION:
I. Background
II. The Department's Implementation of the Convention and the IAA
A. Accrediting Entities
B. Accreditation and Approval Standards
C. Enforcement
D. Concerns About Conduct in Convention Countries
III. Overview of Major Changes and Provisions in the Final Rule
A. Primary Providers and Supervised Providers
B. Accreditation and Approval Standards
C. Complaint Registry
IV. Section-by-Section Discussion of Comments
V. Regulatory Review
A. Regulatory Flexibility Act/Executive Order 13272: Small
Business
B. The Small Business Regulatory Enforcement Fairness Act of
1996
C. The Unfunded Mandates Reform Act of 1995
D. Executive Order 13132: Federalism
E. Executive Order 12866: Regulatory Review
F. Executive Order 12988: Civil Justice Reform
G. The Paperwork Reduction Act of 1995
H. Congressional Review
I. The Treasury and General Government Appropriations Act of
1999--Assessment of Federal Regulations and Policies on Families
Final Rule
Subpart A--General Provisions
Subpart B--Selection, Designation, and Duties of Accrediting
Entities
Subpart C--Accreditation and Approval Requirements for the
Provision of Adoption Services
Subpart D--Application Procedures for Accreditation and Approval
Subpart E--Evaluation of Applicants for Accreditation and
Approval
Subpart F--Standards for Convention Accreditation and Approval
Subpart G--Decisions on Applications for Accreditation or
Approval
Subpart H--Renewal of Accreditation or Approval
Subpart I--Routine Oversight by Accrediting Entities
Subpart J--Oversight Through Review of Complaints
Subpart K--Adverse Action by the Accrediting Entity
Subpart L--Oversight of Accredited Agencies and Approved Persons
by the Secretary
Subpart M--Dissemination and Reporting of Information by
Accrediting Entities
Subpart N--Procedures and Standards Relating to Temporary
Accreditation
I. Background
The Convention is a multilateral treaty that provides a framework
of safeguards for protecting children and families involved in
intercountry adoption. It was developed under the auspices of the
intergovernmental organization known as the Hague Conference on Private
International Law (the Hague Conference).
The United States signed the Convention on March 31, 1994, and the
President transmitted the Convention to the Senate for its advice and
consent on June 11, 1998. (S. Treaty Doc. 105-51 at III (1998)).
Differing versions of implementing legislation for the Convention were
introduced in both the Senate and the House of Representatives in 1999
and were subsequently referred to the appropriate committees. The
Senate Foreign Relations Committee held hearings on October 5, 1999,
and issued a committee report on S. 682 (Report of the Senate Committee
on Foreign Relations on the Intercountry Adoption Act of 2000, 106th
Cong. 2nd Sess., S. Rep. No. 106-276 (2000)). The House International
Relations Committee held hearings on H.R. 2909 on October 29, 1999, and
also issued a committee report. (Report of the House Committee on
International Relations on the Intercountry Adoption Act, 106th Cong.
2nd Sess., H.R. Rep. No. 106-691 (2000)).
On September 20, 2000, the Senate gave its advice and consent to
the ratification of the Convention and, at about the same time,
Congress enacted the implementing legislation for the Convention, the
Intercountry Adoption Act of 2000 (the IAA)), Public Law 106-279, 42
U.S.C. 14901-14952. Consistent with U.S. policy on ratification of
treaties and the Senate's advice and consent to ratification, the
United States will not ratify the Convention until the United States is
able to carry out its obligations under the Convention (See Senate
Declaration for Convention Article 22(2) (146 Cong. Rec. S8866 (daily
ed. Sept. 20, 2000)). Thus, although this Final Rule is effective in 30
days, except as otherwise indicated in the text of the rule, the
Convention will not enter into force immediately upon passage of the 30
days.
The Convention gives party countries a choice about whether to rely
exclusively on public authorities or to use private bodies to complete
certain Central Authority functions listed in the Convention. If the
Convention country chooses to use private bodies, the private bodies
must be accredited agencies (nonprofit adoption service providers) or
approved persons (for-profit and individual adoption service
providers). The Senate's advice and consent to the ratification of the
Convention, taken together with the IAA, establish that the United
States will use accredited agencies and approved persons (referred to
within this preamble as ``adoption service providers'' where
appropriate) to perform certain U.S. Central Authority functions under
the Convention. Other Central Authority functions will be performed, as
appropriate, by the Department or by other governmental authorities
such as the Department of Homeland Security (DHS).
The purpose of this final rule is to establish the regulatory
framework for
[[Page 8065]]
the accreditation and approval function required under the Convention
and the IAA. In developing the rule, we conducted an extensive
preliminary public input phase, discussed at http://www.hagueregs.org,
to garner adoption community input and to engage in a dialogue with
stakeholders. On September 15, 2003, the Department published in the
Federal Register a proposed rule on the accreditation and approval of
agencies and persons (68 FR 54064). For a more detailed discussion of
the Convention, the IAA, and the Department's basis for the rule, see
the preamble to the proposed rule. The Department held a further
meeting on October 28, 2003 to answer questions regarding the proposed
rule. The initial 60-day deadline for submitting comments was extended
30 days, to December 15, 2003.
Since issuing the proposed rule, the Department has also initiated
a selection process to recruit and identify qualified accrediting
entities to accredit agencies and approve persons. (The Department
solicited candidates by mailing Requests for Statements of Interest to
the adoption licensing and child welfare services authorities of each
State and to all private nonprofit organizations that had expressed
interest in providing accreditation/approval services. It also posted
the information soliciting statements of interest from qualified
candidates on its Web site.) The Department thoroughly reviewed all
applications received by the deadline of April 30, 2004. The Department
met with qualified candidates in March 2005 to begin negotiating
agreements to designate accrediting entities. (70 FR 11306, March 8,
2005). The Department will publish all agreements designating
accrediting entities in the Federal Register, as required by the IAA.
Also published in today's Federal Register is the final rule for
part 98 of title 22 of the CFR. It provides the rule for the
preservation of Convention records by the Department and DHS. Separate
rules, which are still under preparation, will establish intercountry
adoption procedures under the Convention and the IAA's amendments to
the Immigration and Nationality Act (INA).
II. The Department's Implementation of the Convention and the IAA
Consistent with the IAA and the Convention, this rule creates an
accreditation/approval system that does not displace State licensing of
adoption service providers, but that does create new Federal
requirements for agencies and persons handling adoption cases between
the United States and other countries party to the Convention. A number
of commenters expressed a variety of concerns about the Department's
approach to implementing the Convention and the IAA through an
accreditation scheme that relies on accrediting entities selected by
the Department to oversee and monitor adoption service providers. In
response to those concerns, we want to reiterate the guiding principles
behind this rule and the Federal accreditation scheme it creates.
A. Accrediting Entities
Many commenters essentially objected to the use of accrediting
entities, preferring the Department to assume direct responsibility for
accreditation of agencies and approval of persons. It would be
inconsistent with the IAA, however, for the Department to assume such a
role. The IAA accreditation scheme provides for the Department to
select and designate one or more accrediting entities to perform this
function.
Some commenters sought more robust provisions controlling the
conduct of accrediting entities. The IAA sections on accrediting
entities left the Department discretion to negotiate by agreement how
an accrediting entity will perform its accreditation duties. It would
be unrealistic and unworkable to address these issues in the rule. We
therefore have included in the final rule some provisions that will
govern designated accrediting entities, but much of the conduct of
accrediting entities will be governed by agreements in addition to
these regulations. The use of agreements is consistent with the statute
and provides the flexibility needed to handle relationships with
multiple accrediting entities, which may differ in ways that require
different provisions governing their relationships with the Department.
B. Accreditation and Approval Standards
We received a wide range of public input on what accreditation/
approval standards should be excluded from or added to subpart F of the
rule (and correspondingly subpart N on temporary accreditation). Our
responses to comments on specific standards are contained in the
section-by-section discussion. We respond here, however, to a number of
general concerns repeatedly expressed by commenters by explaining our
overall conception of the accreditation standards.
We used the central purposes of the IAA and the Convention as a
guide throughout the development of the standards for accreditation and
approval. These purposes are to protect the rights of, and prevent
abuses against, participants in the adoption process in Convention
cases, and to ensure that such adoptions are in the children's best
interests. In addition, the IAA seeks to improve the ability of the
Federal Government to assist prospective adoptive parent(s) in
Convention cases involving the United States.
The standards in subpart F are based on the Convention and the IAA,
particularly section 203(b). Where the Convention or the IAA speaks
broadly, we have also sought to reflect current norms in adoption
practice, as made known to us during the development of the rule.
In particular, the standards in subpart F reflect a focus on
ensuring that agencies and persons provide adoption services with an
individual child's best interests as the foremost goal. The standards
also cover key areas of concern to adoptees, birth parents, and
adoptive parents, such as financial transparency, ethical conduct in
determining if a child is eligible for adoption and in obtaining
medical records for a child, and sound social work practices when
providing training and information to prospective adoptive parent(s).
In reviewing the overall impact of the rule on agencies and persons in
light of comments suggesting that the standards be loosened, we
retained standards we consider necessary for implementing the
Convention's and the IAA's goals of protecting participants in
Convention adoptions.
Some commenters wanted the standards in subpart F to be cast as
specific licensing criteria that must be met in all cases rather than
as accreditation standards that must be ``substantially'' complied
with. As explained in our response to comments on Sec. 96.27 of
subpart E, the Department believes that an accreditation model based on
substantial compliance is more consistent with the regulatory approach
the IAA contemplates. The performance-based standards created by
subpart F (and subpart N) are the type of flexible standards common to
the accreditation field generally, and thus are appropriate for
implementing the IAA. The process of accreditation gives an accrediting
entity discretion to identify problems in an agency's or person's
operations and to provide an opportunity for correction.
C. Enforcement
A number of commenters sought to have the Department play a primary
role in enforcing substantial compliance by agencies and persons with
the
[[Page 8066]]
accreditation standards. This view is inconsistent with the IAA,
however, which dictates that the primary responsibility for oversight
of agencies and persons lies with the accrediting entities. The
accrediting entities will have discretion to determine which adverse
action is appropriate in light of the particular standards in subpart F
(or N) with which the agency or person is not in compliance. The
Department may be required to intervene if the accrediting entity,
after consultation with the Department, fails, or refuses, to take
adverse action against an agency or person. The types of adverse
actions and who can take them (accrediting entities or the Department)
under what circumstances are covered in subparts K and L of the rule.
The Department was asked to permit ``penalties'' for failure to be
in substantial compliance with the rule, other than the enforcement
mechanisms called adverse actions created by the IAA, and to tie the
violation of particular standards to particular penalties. We have not
made such changes. The rule provides the full range of ``penalty''
options provided in the IAA for disciplining agencies and persons.
Because the IAA mandates a substantial compliance model of
accreditation, the rule does not require that accrediting entities
impose particular penalties for violation of particular standards.
Other commenters raised a number of concerns related to the notice
that an agency or person would receive of an adverse action, and the
options that an agency or person would have for protesting the
imposition of the adverse action. While the IAA limits review
procedures that are available, the Department has made a number of
clarifications in the final rule to address these concerns. (See the
section-by-section discussion of subparts K and L.) The rule now
clearly provides that an accredited agency or approved person will have
either notice that it may be faced with an adverse action and an
opportunity to show it is not warranted or, if notice is not provided,
an equivalent after-the-fact opportunity to show that the action should
be withdrawn. The rule also clarifies that the accrediting entity that
imposed an adverse action can always withdraw the adverse action, if it
determines that the action was imposed based upon mistake of fact or
otherwise in error.
D. Concerns About Conduct in Convention Countries
We received many comments requesting that the Department address
specific problems in countries of origin. As Central Authority, the
Department may be able to influence another Convention country's
practices via diplomatic efforts and the provision of technical
assistance. It is outside the scope of our authority, however, and
inconsistent with the Convention's allocation of responsibilities
between a country of origin and a receiving country, for us to impose
specific rules on Convention countries. Therefore, we have not changed
the final rule to cover conduct by other Central Authorities or their
competent (public) authorities. As described in section III, subsection
A, below, however, we have changed the standards U.S. agencies and
persons will need to meet in using private providers in Convention
countries. The standards, as changed, tie the accreditation of agencies
and approval of persons to whether they have adequate arrangements in
place to ensure that, when acting as a primary provider, they can
provide ``all adoption services in cases subject to the Convention'' in
a manner consistent with the IAA and the Convention. (See IAA section
203(b)(1)(B)). They are not intended to interfere with the allocation
of responsibilities between countries party to the Convention.
III. Overview of Major Changes and Provisions in the Final Rule
Discussed here are changes and provisions in the final rule that we
believe are of particular interest to the public. A more thorough
response to individual comments, and more complete discussion of
significant changes made to the rule in response to comments, appears
below in the section-by-section analysis. In addition to changes made
in direct response to comments received by the Department, we have also
made a number of changes for technical and policy reasons, the more
significant of which are brought to the public's attention in the
section-by-section analysis. We have made an effort to highlight such
changes in the general discussion at the beginning of each subpart,
with a brief explanation of why the Department considered them
necessary. Changes of a purely technical nature (for example, changes
made to conform to changes in other sections, for grammatical reasons,
or to ensure consistency throughout the regulations) are not
exhaustively identified because we believe they are self-explanatory.
A. Primary Providers and Supervised Providers
Many commenters were concerned about the rule's coverage of
supervised providers, both in the United States and overseas. Many
urged that the U.S. accredited/approved primary provider be made
responsible for any foreign providers that it selects and uses in the
country of origin, whether public, accredited by the foreign country,
or private and unaccredited.
In response to these concerns, we modified Sec. 96.14 of subpart C
to increase the supervisory responsibilities of primary providers in
the accreditation context. As discussed below at section III,
subsection B.4, however, we removed provisions from subpart F that
would have required a primary provider to assume the legal
responsibility for tort, contract, and other civil claims against
supervised providers and to carry liability insurance for its
supervised providers. The final rule is not intended to have any effect
on the allocation of legal responsibility for tort, contract and other
civil claims. We also added concrete examples at Sec. 96.15 of subpart
C to help explain, generally, the circumstances that require an
adoption service provider to be accredited, temporarily accredited,
approved, supervised, or exempted.
The IAA in section 201(a) provides that, if an agency or person is
providing adoption services ``in connection with a Convention adoption
in the United States,'' it must be accredited, approved, or under the
supervision of an accredited agency or approved person (with limited
exceptions set forth in section 201(b)). The proposed rule established
the general principle of a primary provider--that is, one accredited
agency or approved person responsible for ensuring the provision of all
adoption services in the Convention adoption case.
Under the proposed rule, a primary provider could work with
accredited agencies or approved persons in the United States, or
overseas with entities accredited by a Convention country or public
authorities of a Convention country, without supervising or being
responsible for their acts. The primary provider also was not
responsible for supervising exempted providers or public domestic
authorities in the United States. The primary provider was responsible
only for supervising the acts of private agencies, persons, or other
entities that were providing adoption services without any Convention
accreditation or approval status.
We have kept the requirement in the final rule that the primary
provider is responsible for all supervised providers on a case, but we
have broadened the kinds of private entities that the primary provider
must supervise. There are some differences in the standards that govern
the primary provider's use of
[[Page 8067]]
other providers in the United States and in Convention countries. These
differences reflect both the structure of the IAA and the Convention's
allocation of responsibilities between Convention countries. The common
objective of these standards, however, is to implement the goals of the
Convention and the IAA of protecting participants in the adoption
process and ensuring adoptions are conducted in the best interests of
the child.
1. U.S. Supervised Providers
The rule now requires that the primary provider ensure that other
U.S. accredited agencies or approved persons providing adoption
services in a case are complying with the standards applicable to U.S.
supervised providers. That is, Sec. 96.14(b) now requires that a
primary provider treat all other agencies and persons it is using to
provide adoption services in the United States on a case as supervised
providers, regardless of their accreditation/approval status, unless
the provider qualifies as an exempted provider or a domestic public
authority.
We made this change to the proposed rule in response to expressed
concerns about how an accrediting entity could evaluate the performance
of an agency or person if, as primary provider, the agency or person
was not required to supervise any accredited agencies or approved
persons that it was using to provide adoption services in a particular
case. If an accrediting entity finds that a primary provider has
provided inadequate supervision and, as a result, the actions of an
agency or person that the primary provider is using to provide
services--whether accredited or approved or not--reveal non-compliance
with the standards in these regulations applicable to the use of
supervised providers, then the accrediting entity may take adverse
action against the primary provider.
2. Foreign Providers
Under the final rule, the primary provider must now treat all non-
governmental foreign providers, including agencies, persons, or
entities accredited by a Convention country, that it uses to provide
adoption services as supervised providers consistent with Sec. 96.46(a)
and (b), unless the foreign provider performs a service qualifying for
verification under Sec. 96.46(c) (consents, child background studies
and home studies). We believe that this approach accommodates our
concerns, expressed in the preamble to the proposed rule, that primary
providers would have practical difficulty supervising entities in
another Convention country. This approach was chosen to ensure that
primary providers do not inappropriately rely on accreditation by a
foreign Central Authority as a guarantee of conduct. It is consistent
with the fact, recognized in this rule and the IAA, that accreditation
and approval within the U.S. system cannot guarantee good conduct.
The verification requirement in Sec. 96.46(c) recognizes, however,
that as a practical matter, a primary provider will not be able to
supervise contemporaneously all adoption services that might occur in a
Convention country. A limited number of adoption services will
generally have been performed in a Convention country before a U.S.
primary provider has been identified: In an incoming case (child
immigrating to the United States) the consents to adoption and child
background study will often have been prepared before intercountry
adoption to the United States is specifically contemplated; in an
outgoing case (child emigrating from the United States) the home study
will often have been prepared before the prospective adoptive parent(s)
determine that they wish to pursue intercountry adoption from the
United States.
To recognize these possibilities and to avoid requiring that such
services are re-performed under supervision--that is, to avoid creating
additional costs and delaying adoption placements, which could, in
turn, disadvantage U.S. prospective adoptive parent(s) seeking to adopt
abroad and children seeking placements--the rule adopts a different
approach to the primary provider's oversight of these services. The
standard set forth in Sec. 96.46(c) requires the primary provider to
verify that these three adoption services, when provided by private,
non-governmental providers, were performed in the Convention country
consistently with the requirements of the Convention and any other
applicable local law. (In many countries all three of these services
will be performed by public or competent authorities, for whom a
primary provider is not required to be responsible.) The verification
standard of Sec. 96.46(c) will reinforce the protections in the
Convention and U.S. law relevant to the performance of these three
adoption services. (The Convention requires, for example, that all home
and child background studies not prepared by a governmental authority
be prepared under the responsibility of an accredited body, and that
competent authorities of the state of origin ensure that consents meet
Convention requirements. U.S. governmental authorities will also
address the issue of consent in determining visa eligibility.)
A primary provider will always have the option of treating
providers of services that qualify for verification under the Sec.
96.46(c) standard as supervised providers under Sec. 96.46(a) and (b)
instead, assuming that substantial compliance with those standards is
feasible. This might occur, for example, if a primary provider has a
long-standing supervisory relationship with a particular Convention
country adoption service provider.
As was the case in the proposed rule, primary providers are not
required to treat Central Authorities, or other foreign public
authorities, as foreign supervised providers. This is consistent with
the scope of the Department's authority, and the Convention's
allocation of responsibilities.
B. Accreditation and Approval Standards
We received many comments on the proposed standards on insurance,
social service personnel qualifications, blanket waivers of liability,
and the primary provider's liability for its supervised providers. We
want to explain revisions we have made to those standards in the final
rule.
1. Standard on Professional Liability Insurance
The IAA requires that the standards include an insurance standard.
The proposed rule provided that an agency or person maintains insurance
in a minimum amount of no less than $1,000,000 per occurrence,
annually. In the preamble to the proposed rule, we solicited comments
on the insurance provision from insurance experts, actuaries,
associations, and agencies and persons, and explicitly encouraged
agencies and persons to have their insurance providers comment on this
provision. We received a number of conflicting comments on the
insurance provision, with some commenters opposing the inclusion of any
standard, others stating that professional liability insurance is
simply unavailable, and others maintaining that, even if professional
liability insurance were available, the premiums would make it too
costly for them to operate. Other commenters said insurance would be
affordable and available.
In light of the conflicting public comment on this issue, the
Department made good faith efforts to research further the issues of
availability, feasibility, and costs of professional liability
insurance for adoption service providers. The Department hired an
insurance expert who contacted
[[Page 8068]]
adoption service providers, insurance brokers and agents, wholesalers,
insurance industry service organizations and insurers. The report of
the insurance expert (redacted of confidential business information),
which helped inform the basis of the insurance requirement in the final
rule, is now part of the public record and can be found at http://www.travel.state.gov/family/adoption.
The Department has determined that it is appropriate in
Sec. 96.33(h) of the rule to set a standard of a minimum level of
professional liability coverage in the amount of $1 million in the
aggregate, rather than per occurrence. This standard means that an
adoption service provider should have, at a minimum, a policy that
would make available $1 million in coverage annually for all covered
claims. We believe that this standard is sufficient to protect adoption
service providers, children, and parents, and that the insurance market
is likely to respond to this regulation by making such coverage
available to adoption service providers. The rule continues to provide
that this is a minimum standard; the agency or person will have to take
into account whether its individual risk profile warrants additional
professional liability coverage, or other types of insurance.
2. Social Service Personnel Qualifications
The proposed rule provided as a standard that supervisory social
service personnel have a master's degree in social work (MSW) or
master's degree in a related human service field (with some exceptions
for those already working in the field). Non-supervisory social service
personnel would have to hold an MSW or master's degree, or a bachelor's
degree in addition to experience. The proposed rule also provided for
individuals performing home studies or child background studies to have
a minimum of an MSW or master's degree in a related human service
field.
Most of the comments that we received strongly opposed any standard
providing for social service personnel, other than those in supervisory
positions, to have an MSW or master's degree. A number of comments
indicated that finding qualified MSWs for low-paying positions
available within nonprofit adoption agencies was next to impossible.
Agencies and persons in rural, isolated areas expressed concern about
the general lack of MSWs in non-urban locations. Commenters also
indicated that experience with adoption practice typically was a better
prerequisite for handling intercountry adoption cases than holding an
MSW.
In response to these comments we revised the standard in the final
rule. The final rule, at Sec. 96.37, retains the qualifications for
supervisory social service personnel in the proposed rule.
Qualifications for non-supervisory social service personnel have been
slightly modified to provide for an MSW, master's, or a bachelor's
degree in any field and prior experience in family and children's
services and adoption. We have eliminated entirely any provision that
home study preparers or child background study preparers have an MSW or
a master's degree in a related human service field.
3. Waivers of Liability
The proposed rule would have set a standard prohibiting adoption
service providers from asking clients to sign blanket waivers of
liability. Prospective adoptive parent(s) expressed concerns about
being asked to sign broad waivers of liability as part of their
contracts with agencies and persons. On the other hand, we were also
told that waivers are common to the adoption field, particularly in the
face of increasing litigation over the tort of wrongful adoption, and
were given copies of sample waivers. Some commenters insisted that
agencies and persons could not obtain affordable liability insurance
unless their contracts with clients identified risks inherent to the
adoption process and asked clients to assume those enumerated risks.
Other commenters suggested that the Department provide a boilerplate
waiver clause.
We concluded that a standard prohibiting blanket waivers is not
warranted, and have revised the standard in Sec. 96.39(d) to permit an
agency or person to include a waiver of liability, if consistent with
applicable State law. This approach defers to the adoption service
provider's own assessment of risks and benefits in asking a client to
sign a waiver, and to State law, rather than imposing a Federal
standard prohibiting waivers. To address the major concerns about
extremely broad waivers that exempt all conduct, Sec. 96.39 provides
that any such waivers comply with State law and additionally be limited
and specific and based on risks that have been discussed and explained
to the client in the adoption services contract.
4. Primary Provider Liability for Acts of Supervised Providers
The proposed rule included standards in Sec. 96.45(c) (Using
supervised providers in the United States) and Sec. 96.46(c) (Using
providers in Convention countries) that would have provided for the
primary provider to assume tort, contract, and other civil liability to
the prospective adoptive parent(s) for the supervised provider's
provision of the contracted adoption services and for maintenance of a
bond, escrow account, or liability insurance to cover liability risks
arising from the use of supervised providers.
Many commenters strongly opposed these provisions as impractical
and unworkable, and some questioned the statutory basis behind them. In
their view, a court should be allowed to allocate responsibility in any
particular circumstance, and the Department should not attempt to
allocate responsibility in the standard. Other commenters questioned
the availability of the kind of insurance contemplated to cover the
risk of using supervised providers, especially overseas. A number of
commenters, including insurance providers and agents, said that
insurance coverage for supervised providers would push the cost of
adoption services beyond the reach of many potential prospective
adoptive parents, while others said that such insurance would be
affordable.
The final rule does not include these provisions, or related
provisions on indemnification that were proposed at Sec. Sec. 96.45(d)
and 96.46(d). Primary providers may choose how to allocate risk with
their contractual partners--that is, their supervised providers--within
the framework of existing laws on liability. Under this rule, however,
primary providers will still be held responsible for their supervision
of supervised providers in the accrediting entity's assessment of
whether they are providing adoption services in substantial compliance
with this rule, the IAA, and the Convention.
C. Complaint Registry
The provisions of the final rule related to the Complaint Registry
differ from those that appeared in the proposed rule. The Department
still intends to establish a Complaint Registry to support the
accrediting entities in fulfilling their oversight responsibilities and
the Department in its own oversight role. The Department at this time
no longer intends, however, that the Complaint Registry will be an
independent entity with which the Department will have an agreement. As
reflected in subpart J on oversight through review of complaints, the
Complaint Registry will be a system established by the Department to
assist the accrediting entities and the
[[Page 8069]]
Department in their oversight functions. The Department's current
operational plan is for the Complaint Registry to collect complaints
and make them available to the appropriate accrediting entity for
action. Accrediting entities will be required to establish written
procedures for recording, investigating, and taking action on
complaints referred to them through the Complaint Registry. Upon
completion of an investigation, accrediting entities will have to
provide written notification to the complainant and the Complaint
Registry of its findings and any actions taken.
The Department will be able to review complaints and actions taken
by the accrediting entity and take independent action if appropriate.
The Complaint Registry will maintain records of complaints, track
compliance with deadlines, generate reports, and perform other
functions as the Secretary determines appropriate. We believe that
subpart J provides adequate flexibility to assign additional functions
to the Complaint Registry if experience with the system indicates that
additional functions would be useful or necessary.
IV. Section-by-Section Discussion of Comments
This section provides a detailed discussion of comments received on
the proposed rule, and describes changes made to the proposed rule. Two
general points should be kept in mind in reading this discussion.
First, we refer generally to actions of the ``Department'' pursuant to
the rule. The rule itself refers to actions of the ``Secretary,'' as
the official named in the IAA, but the day-to-day exercise of the
Secretary's functions has been delegated and will be exercised by other
Department officials, primarily in the Bureau of Consular Affairs. (See
Sec. 96.2 of the rule, defining ``Secretary.'') Second, particularly
while discussing the accreditation/approval standards of Subpart F, we
frequently talk in terms of actions that agencies or persons ``must''
take and ``requirements'' they must meet. Readers should keep in mind,
however, that the accreditation/approval model looks for ``substantial
compliance'' with the standards. Thus, within the substantial
compliance framework for accreditation that the IAA establishes,
statements that actions are required mean that agencies or persons will
have to take such actions in order to be judged in full compliance with
the standard in question. The accrediting entities will be responsible
for developing methods of assessing and weighting compliance with
individual standards, subject to the Department's approval, to
determine whether accreditation, temporary accreditation, or approval
can be granted and maintained.
Subpart A--General Provisions
Subpart A is organized in the same way as in the proposed rule, and
includes Sec. 96.1 (Purpose); Sec. 96.2 (Definitions); and Sec. 96.3
(Reserved).
The Department has made a number of changes to Sec. 96.2
(Definitions), in response to public comment, which are described
below. In addition, we have revised the definition of ``approved home
study'' to clarify that a supervised provider could also complete a
home study. We have changed the term ``public body'' to ``public
domestic authority'' and the term ``public authority'' to ``public
foreign authority,'' without making a substantive change in the
definitions, to make the distinction between the two terms, which is
primarily geographic, more transparent. We also added language to the
definition of ``supervised provider'' to clarify that the definition
applies regardless of the local terminology used to refer to private
providers, so long as the private individual or organization is
providing adoption services under the supervision and responsibility of
a primary provider, and to the definition of ``exempted provider'' to
clarify that such providers are providing services within the United
States.
Section 96.2--Definitions
1. Comment: One commenter recommends that the Department add a
definition for ``accreditation'' to clarify that the regulations
address accreditation only as it relates to Convention adoptions. The
commenter requests that the Department specifically state that the
regulations do not affect any voluntary accreditation process for non-
Convention intercountry adoptions.
Response: These regulations do not affect any voluntary
accreditation process for non-Convention intercountry adoptions. It is
not necessary to add a definition of ``accreditation'' to Sec. 96.2,
however, because Sec. 96.12 makes clear that agencies and persons need
to be accredited or approved under these regulations only for purposes
of Convention adoptions.
2. Comment: One commenter requests that the Department establish a
definition of ``adoptability'' for U.S. adoptees who are placed
internationally.
Response: Each U.S. State determines the criteria to use to
determine if a child is eligible for adoption in that State. Because
these regulations are not intended to preempt State law on eligibility
for adoption, we have not added a definition of ``adoptability.''
3. Comment: One commenter requests clarification as to whether the
IAA definition of ``adoption'' is intended to create a Federal law
definition of adoption. The commenter suggests that the Department
define an ``adoption,'' for the purposes of the regulations, as the
judicial or administrative procedure that establishes a legal parent-
child relationship for all purposes between a minor and an adult who is
not already the minor's legal parent and that satisfies the
requirements for the minor child's (i) immigration to the United States
or (ii) emigration from the United States pursuant to the IAA and other
relevant provisions of the INA and Federal law.
Response: The definition of adoption in the rule is applicable only
under these regulations, in the context of the Convention and the IAA.
The Department does not have authority under the IAA to create a
Federal definition of adoption to be used outside of the context of the
Convention and the IAA. Overall, the definition of adoption, for these
regulations, is designed to provide guidance to agencies and persons on
what constitutes an adoption for Convention purposes so that they can
determine if they must be accredited or approved to provide adoption
services in a particular case. The definition is also useful in
distinguishing between ``post-placement'' and ``post-adoption.'' In
response to this comment, the Department is not creating a definition
of adoption that will have any broader applicability but it is
replacing the term ``formal act'' with the phrase, ``the judicial or
administrative act'' in the definition of adoption. This change
clarifies that the definition defers to State and Convention country
choice of judicial or administrative procedures for adoption. The
definition still requires that the legal relationship between a child
and his or her former parents be terminated, but is not meant to affect
informal relationships between a child and his or her former parents,
such as those that develop from an open adoption, or any State law that
allows a stepparent to adopt a child without terminating the parental
rights of the stepparent's spouse, or any State law that grants an
adopted child inheritance rights from a former parent even after a
legal adoption.
4. Comment: Many commenters request that the Department clarify the
difference between ``post-placement monitoring'' and ``post-adoption
services.'' Another commenter requests
[[Page 8070]]
that the Department explicitly state that ``post-placement services''
are services provided by exempted providers in connection with a
Convention adoption. One commenter asks the Department to clarify
whether providing assistance with U.S. immigrant visa processing is a
post-adoption service or post-placement monitoring. There were
conflicting comments as to whether or not ``post-adoption services''
include the provision of supportive services to adoptive families to
promote the well-being of adoptees and families, the stability of
adoptive placements, and the prevention of adoption disruption or
dissolution as well as monitoring and reporting.
Response: Post-placement monitoring is an ``adoption service''
under the IAA. Because of this an adoption service provider must be
accredited, temporarily accredited, approved, or operate as a
supervised provider to provide post-placement monitoring in a
Convention adoption case in the United States. Post-adoption services,
however, are not adoption services under the IAA, and an agency or
person would not have to comply with the accreditation/approval
requirements to perform them in a Convention adoption case. To
distinguish between post-placement monitoring and post-adoption
services, the Department has added new definitions of ``post-
placement'' and ``post-adoption.'' ``Post-placement'' is defined as the
period of time after a grant of legal custody or guardianship of the
child to the prospective adoptive parent(s) or to a custodian for the
purpose of escorting the child to the identified prospective adoptive
parent(s), and before an adoption. An example of ``post-placement
monitoring'' (an adoption service) would be a pre-adoption home visit
or report monitoring the child's adjustment to the new pre-adoptive
home. By contrast, ``post-adoption'' means after an adoption; in cases
in which an adoption occurs in a Convention country and is followed by
a re-adoption in the United States, it means after the adoption in the
Convention country. Any of the following would be examples of a ``post-
adoption service,'' if provided after the child's adoption: providing
mental and physical health services for the adopted child; providing
assistance in filling out post-adoption reports required by certain
Convention countries; and sponsoring support groups for adopted
children or adoptive parents. The Department understands that there is
also some confusion over which post-placement services are ``adoption
services.'' ``Post-placement monitoring'' is one of the enumerated
``adoption services'' in the IAA. Post-placement monitoring encompasses
services related to evaluating the continuing fitness of the child's
adoptive placement. For example, monitoring how a child is adjusting to
his or her new family or visiting the prospective adoptive parent(s) to
ensure that they are able to care for the particular needs of the child
and to determine whether the placement is still in the child's best
interests is post-placement monitoring.
If, on the other hand, the post-placement service is not related to
the adoptive placement, then it is not the adoption service of ``post-
placement monitoring.'' An agency or person is not performing a post-
placement ``adoption service,'' for example, if it provides post-
placement counseling to a family. Assisting with U.S. immigrant visa
processing is not included in Section 3(3) of the IAA's definition of
``adoption services,'' and is not an activity that is within the scope
of these regulations.
5. Comment: Some commenters request that the Department add ``post-
adoption services'' to the list of adoption services, and hence to the
activities subject to these regulations. One commenter states that its
members believe post-placement services, whether provided before or
after legalization of an adoption, should be provided by qualified
personnel. The commenter suggests a revision of the Department's
definition of ``adoption services'' to include providing required
periodic reports to the child's country of origin, or any other post-
adoption services required by the child's country of origin.
Response: Section 3(3) of the IAA, which defines adoption services,
does not include post-adoption services as an adoption service. (In
fact, while at least one draft of H.R. 2909, the bill that became the
IAA, included post-adoption services in the definition of adoption
services, post-adoption services were not included in the definition in
the IAA as enacted.) Services provided after an adoption is dissolved
are also not ``adoption services,'' as defined in the IAA, because they
are provided after an adoption has occurred, so they are post-adoption
services.
Some of the comments on this issue reflected a concern about
ensuring compliance with post-adoption reporting requirements imposed
by countries of origin, particularly if parents are unwilling to
cooperate, or do not maintain contact with agencies and persons. The
Department encourages agencies and persons involved in Convention
adoptions to comply with all applicable post-adoption reporting
requirements. We note that countries of origin that require post-
adoption reports may stop working with U.S. agencies and persons that
cannot produce the post-adoption reports. While this is a potentially
serious issue, it is not one that can be addressed through the
accreditation process or these regulations.
6. Comment: Several commenters request more specific definitions
addressing who can provide adoption services. They want to know if
``adoption helpers'' or ``advisors'' are covered. Another commenter
requests that the Department's definition of ``adoption services'' be
revised to exclude simply assisting a country of origin's public
foreign authority. Another commenter requests that the Department
define ``adoption services'' to include the services of ``unlicensed
facilitators''--individuals that essentially provide adoption services
(like the preparation of adoption paperwork and the arrangement of
child-matching services for parents in foreign countries).
Response: Whether the activities of an adoption service provider
are subject to the accreditation/approval standards in this rule turns
solely on whether the private individual or entity is providing a
defined ``adoption service,'' and not on the identity of the private
individual or entity, the term used to refer to the private individual
or entity, or the entity on whose behalf the services are provided. If
people who call themselves ``adoption helpers'' or ``advisors'' are
performing in the United States any of the services enumerated in the
adoption services definition, they must be accredited, temporarily
accredited, approved or supervised, or exempted once the Convention
goes into force for the United States. A primary provider must also
ensure that, with respect to adoption services performed in a
Convention country, any private individuals or entities it is using to
perform adoption services in a Convention case--regardless of identity,
the term used to refer to them, or on whose behalf the services are
performed--are supervised, unless they are performing a service
qualifying for verification under Sec. 96.46(c). Examples of different
adoption services, and instances in which providers of such services
must be accredited, temporarily accredited, approved, supervised, or
exempted, have been added to the regulation to help clarify this point
in Sec. 96.15 of subpart C.
7. Comment: One commenter requests that the Department clearly
define ``suspension'' and ``cancellation'' as they relate to adverse
actions against
[[Page 8071]]
accredited agencies and approved persons. Specifically, the commenter
asks whether an accredited agency or approved person will have to
transfer its adoption cases to another entity during a period of
``suspension.'' The commenter requests that the Department replace the
term ``suspension'' with ``probation, with required corrective action''
to clarify that the accredited agency or approved person does not have
to transfer its cases while correcting noted problems.
Response: The Department has not substituted ``probation, with
required corrective action'' for ``suspension'' because suspension is
the term used in the list of adverse actions contained in Sec.
202(b)(3) of the IAA. Nor have we added definitions of suspension and
cancellation to subpart A, because the consequences of suspension and
cancellation are adequately explained in subpart K. Section 96.77 of
subpart K provides that the suspended agency or person must consult
with the accrediting entity about whether or not a particular
suspension requires that an agency or person to transfer all its
Convention cases. Please see response to comment 1 on Sec. 96.75 for
further information.
8. Comment: Several commenters request that the Department
elaborate on the definition of ``child welfare services.'' They note
that providers of these services are exempt from the accreditation/
approval process. One commenter requests that the Department provide
more specific examples of providing child welfare services. Another
commenter asks whether the definition is limited only to services
provided by public child welfare agencies or whether it also includes
broader services such as after-school activities, YMCA programs, or
summer respite.
Response: ``Child welfare services'' are defined in Sec. 96.2 as
services, ``other than those defined as ``adoption services,'' which
are designed to ``promote and protect the well-being of a family or
child.'' Thus, when attempting to decide what constitutes a ``child
welfare service,'' it is necessary first to determine if the service is
an ``adoption service.'' If not, then the service could be a ``child
welfare service.'' Some examples of child welfare services are:
providing mental or physical health services for adoptive parents or
adoptees; promoting adoption through general programs, but not
providing adoption services in specific cases; conducting support
groups for adoptive parents or adoptees; and providing temporary foster
care for children who are awaiting adoption. These examples are not an
exhaustive list of ``child welfare services.'' The definition of
``child welfare services'' is not limited to public child welfare
agencies. Private organizations, such as the YMCA, are exempt from the
accreditation/approval process if they only provide services for
children or parents that are not adoption services.
9. Comment: One commenter seeks clarity for the definition of
``exempted provider.''
Response: ``Exempted providers'' and ``exempted activities'' are
explained in more detail in the subpart C of this final rule. We have
changed the definition of ``exempted provider'' to clarify that a
social work professional or an organization may perform a home study or
a child background study (or both) in the United States in a Convention
adoption, as an exempted provider, as long as the social work
professional or organization is not currently providing and has not
previously provided any other adoption service in the same case. The
definition is consistent with Sec. 96.13 of subpart C. See responses
to comments 1 and 2 in Sec. 96.13.
10. Comment: Several commenters recommend that the regulations
define what constitutes a complaint, so that the number of frivolous
complaints will be limited. Several commenters also recommend that the
word ``complaint'' be changed to the word ``grievance,'' in order to
signify a more formal concern, and offer definitions of grievance.
Several commenters also recommend that the regulations require
complaints to be filed in writing. One commenter further requests that
the regulations be amended to reflect that anonymous complaints may not
be filed.
Response: We have not added a definition of complaint, but have
made other changes to the final rule to respond to the concerns
expressed, in the definition of ``Complaint Registry,'' in Sec. 96.41,
and in subpart J. Section 96.41 now makes clear that complaints must be
signed and dated to be lodged with an agency or person, and must refer
to activities or services that the complainant believes raise an issue
of compliance with the Convention, the IAA, or the regulations
implementing the IAA. Subpart J similarly now makes clear that
complaints that may be filed through the Complaint Registry are written
documents submitted by a complainant that concern an accredited agency
or approved persons (including their use of supervised providers), and
that raise an issue of compliance with the Convention, the IAA, or the
regulations implementing the IAA. An agency or person's response to
other kinds of ``complaints'' will not be relevant to the
accreditation/approval process.
11. Comment: Some commenters question how the Complaint Registry
will be established.
Response: The Department has modified the definition of ``Complaint
Registry'' (Sec. 96.2) to make it clear that it will be a system
created by the Department intended to receive, distribute, and monitor
complaints relevant to the accreditation or approval status of agencies
and persons. The functions of the Complaint Registry are addressed in
Sec. 96.70 of subpart J.
12. Comment: Commenters suggest that the Department add a
definition of the term ``displacement'' to Sec. 96.2, defining
displacement as the placement of an adoptee in an out-of-home care
environment without terminating parental rights, for example, so that
the child may receive, for example, mental health in-patient treatment.
Response: Because what the commenters describe as ``displacement''
would occur post-adoption, and thus would fall outside the scope of
these regulations, we have not added a definition of displacement to
the rule.
13. Comment: Several commenters request clarification or revision
of the definitions of ``dissolution'' and ``disruption'' in Sec. 96.2.
One commenter suggests that the Department and Congress (in the IAA)
reversed the meaning of these terms. Another commenter requests that
the definitions of ``disruption'' and ``dissolution'' be revised to
state explicitly that a disruption or dissolution must be included in
the overall statistics of adoption failures only if it occurs while an
adoptee is physically residing with a family in their home at the time
of the disruption or dissolution. Similarly, another commenter is
concerned that the Department's definition of ``disruption'' is too
broad and could force agencies and persons to generate reports in cases
in which the disruption had benign causes. One commenter suggests that
the definition of ``disruption'' should be revised to address more
specifically the ``disruptions that occur after a child has left his or
her country of origin.'' A commenter suggests the following
definitions: `` `Disruption' means adoptive placement that does not
finalize in an adoption. `Dissolution' means dissolving the adoptive
placement through termination of parental rights.''
Response: In defining ``disruption'' to refer to an interrupted
adoptive placement, the Department followed Sec. 104(b)(3) of the IAA,
which used ``disruption'' in the same manner. We
[[Page 8072]]
also believe that the majority of people involved with intercountry
adoptions use the terms ``disruption'' and ``dissolution'' as we have
defined them. Therefore, the Department is not changing the definitions
of ``disruption'' and ``dissolution'' to, in effect, reverse them.
The Department has, however, revised the definition of
``disruption'' and has modified related definitions and reporting
requirements, to clarify when a ``disruption'' will need to be
reported. ``Disruption'' is now defined to mean the interruption of a
placement for adoption during the ``post-placement'' period. ``Post-
placement'' now is defined so that a ``disruption'' will need to be
reported only when it takes place after legal custody or guardianship
of the child has been transferred to the prospective adoptive parent(s)
or a custodian for transport to the prospective adoptive parent(s), but
before the adoption is completed. Thus, an agency or person would not
need to report a ``disruption'' if a prospective adoptive family
decided not to pursue an adoption during an informal placement pending
transfer of legal custody of the child. On the other hand, a
``disruption'' would need to be reported if it happened after legal
custody or guardianship of the child was transferred, even if the child
had not yet left his or her country of origin.
We have also modified the definition of ``dissolution'' to reflect
the addition to Sec. 96.2 of a definition of ``post-adoption,'' and to
respond to the suggestion that we make specific reference to
termination of parental rights. The final rule defines ``dissolution''
to be the termination of the adoptive parent(s)' parental rights after
an adoption.
14. Comment: One commenter requests that the Department add to
Sec. 96.2 a definition of a foreign Convention ``accredited body.''
Another commenter similarly suggests adding a definition for ``foreign
partner providers''--entities accredited or approved by a Convention
country and providing one or more adoption services in a Convention
case. The commenter also recommends defining ``foreign governmental
partner providers,'' as public authorities of a Convention country
(excluding courts) providing one or more adoption services in a
Convention case.
Response: The Department believes that it is unnecessary to add a
definition for foreign accredited bodies or ``foreign partner
providers.'' Subpart C explains when foreign providers accredited by a
Convention country must operate under the supervision and
responsibility of a primary provider. Please see response to comment 1
for Sec. 96.14. We also believe that the definitions of ``public
foreign authority'' and ``competent authority'' are adequate to refer
to public authorities of Convention countries.
15. Comment: A commenter requests that the Department make clear,
in the definition of ``legal services,'' that it is not regulating the
actions of foreign attorneys. The commenter also cautions the
Department that it cannot regulate attorneys licensed in the United
States because they are regulated by the States. Thus, the commenter
believes that the Department is incorrect when it asserts (in the
preamble to the proposed rule) that a lawyer who secures necessary
consents to the termination of parental rights and to adoptions in
Convention cases must be approved or must secure the consents as part
of, or under the supervision and responsibility of, an accredited
agency, temporarily accredited agency, or an approved person.
Response: The IAA and these regulations are not intended to preempt
State laws regarding licensing of attorneys; on the other hand, under
the IAA, persons, including lawyers, who provide adoption services in
the United States, as opposed to legal services, must comply with the
IAA. Section 201(b)(3) of the IAA states that the provision of legal
services by a person ``who is not providing any adoption service in the
case'' is exempt from the accreditation/approval requirements. The
exemption does not apply, however, if the attorney is providing (non-
exempt) adoption services in the case. An adoption service, as defined
in the IAA, provided by a U.S. attorney, or through a U.S. accredited/
approved provider's use of the services of a foreign attorney, in
connection with a Convention case would need to provided in compliance
with any applicable requirements of the IAA and these regulations,
regardless of any professional standards or licensing or other laws
that would also govern the actions of the attorney. We note, however,
that the rule would allow a primary provider to treat a foreign
attorney that provided only the adoption service of obtaining consents
in a Convention country as either a supervised provider, consistent
with Sec. Sec. 96.45(a) and (b), or as performing a service qualifying
for verification under Sec. 96.46(c)).
Subpart B--Selection, Designation, and Duties of Accrediting Entities
Subpart B is organized in the same way as in the proposed rule, and
includes Sec. 96.4 (Designation of accrediting entities by the
Secretary); Sec. 96.5 (Requirement that accrediting entity be a
nonprofit or public entity); Sec. 96.6 (Performance criteria for
designation as an accrediting entity); Sec. 96.7 (Authorities and
responsibilities of an accrediting entity); Sec. 96.8 (Fees charged by
accrediting entities); Sec. 96.9 (Agreement between the Secretary and
the accrediting entity); Sec. 96.10 (Suspension or cancellation of the
designation of an accrediting entity by the Secretary); and Sec. 96.11
(Reserved).
We have made a number of changes to this subpart in response to
public comment, including changes to Sec. Sec. 96.6, 96.7, and 96.10,
which are discussed below. We also deleted from Sec. 96.4(a) material
on soliciting accrediting entities that is no longer relevant and made
additional clarifying corrections to Sec. 96.4(a), to make plain that
accrediting entities will be designated by the Department in an
agreement that will also govern operations of the accrediting entity.
Finally, we made conforming changes to Sec. 96.7(b), to ensure
consistency with changes made to the definition of Complaint Registry
in Sec. 96.2 and to subpart J.
Section 96.4--Designation of Accrediting Entities by the Secretary
1. Comment: Several commenters are concerned that having too few
accrediting entities will create a monopoly, with accrediting entities
charging exorbitant accrediting fees and possibly putting smaller
agencies out of business. Other commenters encourage the Department to
limit the number of accrediting entities to avoid accrediting entities
competing for the business of the very people they are supposed to be
regulating.
Response: Section 202(a)(1) of the IAA states that the ``Secretary
shall enter into agreements with one or more qualified entities'' that
will perform the duties of an accrediting entity (emphasis added). The
IAA permits public entities to act as accrediting entities in part to
increase the number of possible accrediting entities. (See IAA section
202(a)(2)(B)). The Department has used extensive outreach efforts to
solicit a broad pool of interested parties to apply to become
accrediting entities. We will not know the actual, final number of
accrediting entities until we are able to enter into agreements with
qualified applicants, but it is clear the number will be small, at
least initially. There is no reason at this time to limit the number by
regulation. The quality and fairness of the accrediting entities will
not be addressed by the number of such entities but by the Department
designating accrediting entities that are
[[Page 8073]]
qualified under the IAA and that meet the criteria established in these
regulations and through the Department's ongoing oversight, including
its oversight of accreditation fees, which under the IAA and these
regulations may not exceed the costs of accreditation.
2. Comment: Some commenters are concerned that the Department did
not provide public entities enough time or information to allow them to
submit Statements of Interest to become accrediting entities. These
commenters suggest that the Department should individually contact all
public entities that do adoption licensing and invite them to apply.
Similarly, many commenters want the regulations to mandate that every
State licensing authority act as an accrediting entity for Convention
purposes.
Response: The IAA does not authorize the Department to require all
qualified public entities to become accrediting entities, but the
Department did contact each relevant State authority and encourage it
to apply to become an accrediting entity. The Department expects to
provide additional open application periods for public entities or
private nonprofit entities to apply to become accrediting entities at a
future time.
3. Comment: Commenters believe that the Department should not
delegate the function of accrediting agencies and approving persons to
accrediting entities. These commenters suggest that the Department
should act as the single accrediting entity for all agencies and
persons, in order to bring uniformity to the application of accrediting
standards and promote an emphasis on the best interests of the
children.
Response: The IAA requires that the Department enter into
agreements with qualified public entities or qualified nonprofit
organizations to be accrediting entities. The Department cannot act
directly as an accrediting entity.
4. Comment: Several commenters recommend that the Department,
rather than an accrediting entity, investigate allegations of improper
conduct involving agencies and persons overseas.
Response: Under the IAA, accrediting entities are given primary
responsibility for overseeing the conduct of the agencies and persons
they accredit or approve. As explained in the response to comment 1 on
Sec. 96.6, below, the accrediting entity will be responsible for
monitoring agencies it accredits or temporarily accredits and persons
it approves, including by monitoring their use of all supervised
providers, including foreign supervised providers. The Department is
required to take the direct action of suspension or cancellation
against an accredited agency or approved person only if the accrediting
entity has failed or refused, after consultation with the Department,
to take appropriate enforcement action itself.
5. Comment: Some commenters request that the Department prohibit
current State licensing authorities from becoming accrediting entities.
One commenter suggests that these public domestic authorities have not
been responsive in the past to the concerns of adopting parents. A
commenter also asserts that the IAA was enacted in part because States
were unable to regulate adoption effectively, and apparently is
concerned that state licensing authorities that are accrediting
entities will assert sovereign immunity, or in any event will not
accord ``consumers'' sufficient ``due process.'' This commenter seems
to contemplate suits against accrediting entities by ``consumers''
rather than the kind of judicial review of adverse action specifically
addressed by the IAA.
Response: As stated above, the IAA permits qualified public
entities to become accrediting entities and the Department intends to
consider qualified public entities as potential accrediting entities.
The Department believes the commenters' concerns about the likely
responsiveness of public entities will be addressed by the Department
designating public entities as accrediting entities only if they
demonstrate that they are qualified under the IAA and can meet the
criteria established in these regulations. The Department will also
maintain ongoing oversight of all accrediting entities. In particular,
the Department's agreements with the accrediting entities, which will
be published in the Federal Register, will address accountability of
the accrediting entities to the Secretary. Also, in this regard, the
public will be able to complain about the performance of any
accrediting entity to the Department, and the Department will be able
to suspend or cancel the designation of any accrediting entity, as set
forth in Sec. 96.10 of the rule. As well, subpart J ensures that the
Department will be able to oversee the performance of all accrediting
entities in resolving complaints against adoption service providers. As
for the concern about sovereign immunity and the ``due process'' rights
of ``consumers,'' nothing in these regulations is intended to create
rights vis-[agrave]-vis any accrediting entity, whether public or
private nonprofit. Consistent with this, we have made clear in Sec.
96.12, as discussed in the response to comment 7 on this section,
below, that the conferral of accreditation or approval does not make an
accrediting entity responsible for any acts of any entity providing
services in connection with a Convention adoption and does not
guarantee that in any specific case an accredited agency or approved
person is providing adoption services consistently with the Convention,
the IAA, the regulations implementing the IAA, or any other applicable
law.
6. Comment: Commenters recommend that the Department add a
mechanism for the public to challenge a decision by the Department to
designate or not designate a public domestic authority or nonprofit
organization as an accrediting entity.
Response: The Department's selection of accrediting entities is
committed to the Department's discretion. Moreover, section 504 of the
IAA provides that the Convention and the IAA shall not be construed to
create a private right of action to seek administrative or judicial
relief, except to the extent expressly provided in the IAA. Once the
Department has signed an agreement with an accrediting entity, however,
anyone will be able to submit a complaint regarding an accrediting
entity directly to the Department. Section 96.10(a) of these
regulations requires that such complaints be considered in determining
whether an accrediting entity's designation should be suspended or
canceled.
7. Comment: Potential accrediting entities suggest that the
Department add a provision to Sec. 96.4 to limit the liability of
accrediting entities. Without such a provision, potential accrediting
entities have suggested that it will be difficult to hire or retain
evaluators/peer reviewers and that the fees for accreditation will be
significantly higher to cover the risk of third-party litigation.
Response: The Department never intended that accrediting entities
be responsible for third-party tort claims, and does not believe that
the IAA suggests that they should be. While we have not revised Sec.
96.4, we have added language to Sec. 96.12 to underscore that
conferral and maintenance of accreditation, temporary accreditation, or
approval is not tantamount to a guarantee that adoption services in
specific cases are performed consistently with the Convention, the IAA,
the regulations implementing the IAA, or any other applicable law but
rather establishes only that the accrediting entity has concluded that
the agency or person provides services in substantial compliance with
the
[[Page 8074]]
applicable standards set forth in this part.
8. Comment: Two commenters suggest that an agency, person, or other
interested party should have the opportunity to file a complaint
against an accrediting entity or to challenge the accrediting entity's
interpretation of a regulation or law.
Response: The Department will accept and collect complaints against
accrediting entities pursuant to Sec. 96.10(a). (The Department
intends to post on its website instructions for how to submit a
complaint against an accrediting entity.) As part of its ongoing
oversight responsibility, the Department will investigate and consider
any complaints against an accrediting entity when determining whether
an accrediting entity's designation should be suspended or cancelled.
Please note that the accrediting entities are responsible for
investigating complaints against agencies and persons.
Section 202(c)(3) of the IAA allows an agency or person that has
been the subject of an adverse action by any accrediting entity to seek
Federal court review to have the adverse action set aside. For a
description of the accrediting entity's role with regard to terminating
adverse actions, see the responses to comment 1 for Sec. 96.78 and
comment 1 for Sec. 96.79.
Section 96.5--Requirement that Accrediting Entity be a Nonprofit or
Public Entity
1. Comment: Some commenters believe that the current language of
Sec. 96.5 implies that only existing organizations can become
accrediting entities (which will only exacerbate the potential for a
monopoly of accrediting entities). These commenters note that Sec.
96.5 states that an accrediting entity must ``qualify'' as either a
nonprofit organization or a public entity. They have asked for
clarification that, in the future, accreditation will be open to new
organizations as well. They also propose the following language: ``An
accrediting entity must qualify as * * * (a) an organization or
proposed organization described in section 501(c)(3) of the Internal
Revenue Code of 1986.''
Response: The Department does not believe there is a need for new
language to cover ``proposed'' accrediting entities. Although the first
application period for those interested in becoming accrediting
entities closed on April 30, 2004, there will be opportunities in the
future for another round of applications. At that time, any public
entities and nonprofits that express interest in becoming accrediting
entities will have the opportunity to demonstrate that they meet the
IAA criteria and that they have the capacity to perform the duties of
an accrediting entity.
2. Comment: One commenter suggests that Sec. 96.5(a) should be
removed because there is no advantage to restricting for-profit
entities from being accrediting entities.
Response: The Department is retaining Sec. 96.5(a); its
requirements come directly from Sec. 202(a) of the IAA, under which
for-profit private entities are not qualified to be accrediting
entities.
Section 96.6--Performance Criteria for Designation as an Accrediting
Entity
1. Comment: One commenter recommends that the Department modify the
rule to require an accrediting entity to demonstrate that it has the
ability to monitor the performance of accredited agencies and approved
persons and their supervised providers.
Response: Section Sec. 96.6(c) already required the accrediting
entity to demonstrate to the Department that it can monitor the
performance of accredited agencies, temporarily accredited agencies,
and approved persons. In addition, the Department has modified
Sec. Sec. 96.6(c) and 96.7(a)(4) to make it explicit that accrediting
entities must demonstrate that they are capable of monitoring a primary
provider's use of supervised providers. We are aware that public
entities and nonprofits designated as accrediting entities will likely
have limited capacity to investigate overseas conduct directly, but we
still expect them to use all reasonable means available to them of
evaluating an accredited agency's or approved person's use of a
supervised provider overseas. Such means would include, but not be
limited to, document review and interviews to check that the agency or
person is complying with the requirements of Sec. 96.45 for using
supervised providers in the United States and of Sec. 96.46 for using
supervised providers in Convention countries.
2. Comment: A commenter recommends that the Department revise Sec.
96.6(f) insofar as it requires an accrediting entity that is not a
public entity to demonstrate that it operates independently of any
organization that includes agencies or persons that provide adoption
services, noting that membership associations have played a valuable
role in the development and support of accrediting entities. The
commenter suggests that this section instead permit an accrediting
entity to demonstrate that membership organizations will not have
inappropriate influence on an accrediting entity, and that the
accrediting entity has conflict-of-interest policies to address its
relationships with membership organizations.
Response: We have not made the suggested change to Sec. 96.6(f),
but we have added a new Sec. 96.6(i) providing that the accrediting
entity must prohibit conflicts of interest with any agency, person, or
membership organization that includes agencies or persons. With this
addition it should be clear that Sec. 96.6(f) does not bar accrediting
entities that are not public entities from being associated with
membership organizations, which we have been told can play a valuable
role in helping to identify and maintain best practices within the
field of adoption. At the same time, it is critical that accrediting
entities be neutral and objective in evaluating agencies and persons
and avoid the appearance of partiality. Potential problems may be
avoided if accrediting entities operate independently of membership
organizations with which they are associated and that include agencies
or persons that provide adoption services. When the Department
addresses conflict-of-interest issues in the agreements with the
accrediting entities under Sec. 96.6(h), it may include specific
safeguards for accrediting entities' involvement with such membership
organizations.
3. Comment: Some commenters ask that the Department expand the
conflict-of-interest provisions of Sec. 96.6(h) and set conflict-of-
interest prohibitions through rulemaking. Another commenter requests
that the Department specifically forbid any board member or employee
who works with or for an agency or person or that is related to an
agency or person from serving as a board member or employee of an
accrediting entity. Another commenter suggests that the conflict-of-
interest provisions should prohibit employees of accrediting entities
or volunteer evaluators from becoming employed by an adoption service
provider for at least one year after participating in any accreditation
service for that provider.
Response: In response to these comments, the Department has
modified the final rule to include two new conflict-of-interest
provisions. First, we have added Sec. 96.6(i) to require that an
accrediting entity demonstrate that it prohibits conflicts of interest
with agencies or persons or with any membership organization that
includes agencies or persons. Second, we added Sec. 96.6(j) to require
accrediting entities to demonstrate that they prohibit individuals
directly involved with the
[[Page 8075]]
site evaluation of a particular agency or person from becoming
employees or supervised providers of that same agency or person for at
least one year. Consistent with section 202(a)(1) of the IAA, the
Department may establish other appropriate conflict-of-interest rules
in the agreements with accrediting entities.
Section 96.7--Authorities and Responsibilities of an Accrediting Agency
1. Comment: One commenter suggests that the Department should
require that accrediting entities investigate and respond to complaints
about the supervised providers of accredited agencies and approved
persons.
Response: As described in subpart J of these rules, the Complaint
Registry will refer complaints about accredited agencies and approved
persons to an accrediting entity. If a complaint involves conduct of a
supervised provider, the accrediting entity will need to check whether
the accredited agency or approved person that is acting as the primary
provider has provided adequate supervision of its supervised providers.
If an accredited agency or approved person does not provide adequate
supervision of its supervised providers, it will be out of compliance
with the standards in Sec. Sec. 96.45 and 96.46 related to use of
supervised providers. The accrediting entity may, if the complaint is
supported, take adverse action against an accredited agency or approved
person for reasons related to its use of a supervised provider. Section
96.71 requires accrediting entities to establish written procedures,
including deadlines, for recording, investigating, and acting upon such
complaints.
2. Comment: A commenter recommends that the Department add a
statement to Sec. 96.7(a)(7) to clarify that accrediting entities are
permitted to report information relating to suspected child abuse to
responsible State authorities.
Response: The Department does not believe it is necessary to add
such language. Nothing in Sec. 96.7(a) prevents an accrediting entity
from reporting suspected child abuse to the appropriate State
authorities, and this section does not change State laws regarding
mandatory reporting of suspected child abuse. Furthermore, Sec.
96.72(b)(3) requires an accrediting entity, after consultation with the
Department, to refer to law enforcement authorities any substantiated
complaints that involve conduct that is in violation of Federal, State,
or local law.
3. Comment: Two commenters object to Sec. 96.7(a)(8), on transfer
of Convention cases, and ask that it be removed from the regulations.
One of the commenters believes that this requirement puts accrediting
entities in the awkward position of having to choose, or make
recommendations regarding, which agencies and persons should be
assigned the Convention cases that need to be transferred. The other
commenter believes that it is essential for an accrediting entity to
transfer Convention cases pursuant to Sec. 96.7(a)(8), but recommends
that the Department develop specific criteria for the selection of
organizations to accept the transfer of these cases.
Response: We have modified Sec. 96.7 (and provisions in subparts
K, L, and N) so that accrediting entities are responsible for assisting
the Department in taking appropriate action to help the agency or
person transfer its Convention cases and adoption records. We now
require in Sec. Sec. 96.33(e) and 96.42(d) that agencies and persons
have a plan to transfer their Convention cases and adoption records in
the event that they become unable to continue performing Convention
adoptions. If an agency's or person's plan fails, Sec. 96.77(c) now
requires accrediting entities to advise the Department, which, with the
assistance of the accrediting entity, will coordinate efforts to
identify other accredited agencies or approved persons to assume
responsibility for the Convention cases and to transfer the records to
other accredited agencies or approved persons, or to public domestic
authorities, as appropriate. Corresponding comments were made to
Sec. Sec. 96.87 and 96.109.
Section 96.8--Fees Charged by Accrediting Entities
1. Comment: One commenter requests, for reasons of fairness, that
the Department add a provision to the rules that mandates that fees for
accrediting services will be uniform across geographic and
jurisdictional boundaries. On the other hand, another commenter
supports the Department's decision to permit fees to vary based on the
relative size, geographic location, and volume of Convention cases of
an accredited agency or approved person. Two other commenters express
concern about the cost of accreditation.
Response: Section 202(d) of the IAA requires that, in approving the
fees set by an accrediting entity, the Department ``consider the
relative size of, the geographic location of, and the number of
Convention adoption cases managed by the agencies or persons subject to
accreditation or approval by the accrediting entity.'' Therefore, the
Department does not have the discretion to ignore these factors when
approving fees. In addition, while fees may not exceed the costs of
accreditation, it is possible that some public entities that are
designated as accrediting entities may choose to subsidize the cost of
accreditation in their States, creating additional possible variance in
fees. The Department will review and approve accrediting entity fee
schedules for compliance with the IAA's requirements. Approved fee
schedules will be publicly available, which should allow comparison of
fees.
2. Comment: Several commenters suggest that it is difficult to
comment on the fee provisions of the regulations because the Department
did not provide a fee schedule or an estimate of the accreditation
fees.
Response: This regulation does not address the actual fees of the
accrediting entities, which are not subject to rulemaking, but only the
factors the Department will consider in deciding whether to approve fee
schedules that the accrediting entities propose. The regulation closely
tracks the statute, leaving the Department flexibility to approve or
disapprove proposed fees in light of the IAA's requirements. Given the
wide range of possible fee structures and the start-up nature of the
accreditation process, it is not practicable to further regulate on
this issue at this time. Nor can the Department predict what the actual
approved fees will be after the proposed fees are reviewed in light of
the statutory and regulatory criteria.
3. Comment: A commenter suggests that Sec. 96.8(d), which states
``[n]othing in this section shall be construed to provide a private
right of action to challenge any fee charged by an accrediting entity''
was the equivalent of ``taxation without representation.''
Response: We have retained Sec. 96.8(d) because it is consistent
with section 504 of the IAA, which prohibits inferring private rights
of action under the IAA and the Convention, except as provided by the
IAA.
4. Comment: A commenter is concerned that, while the regulations
require accrediting entities to investigate complaints about accredited
agencies and approved persons, they provide for the allowable fees for
such investigatory services to be predetermined and published in the
fee schedule pursuant to Sec. 96.8, the implication being that the
fees may prove inadequate to support the necessary investigation. The
commenter suggests that the Department remove the responsibility for
investigating accredited agency and approved person
[[Page 8076]]
wrongdoing from accrediting entities and retain that responsibility for
itself.
Response: The IAA requires that accrediting entities investigate
and review complaints against the agencies and persons that they
accredit or approve. Under section 204(b) of the IAA, the Department is
only required to take adverse action against an agency or person if it
finds that the accrediting entity has failed or refused, after
consultation with the Department, to take appropriate enforcement
action. Accrediting entities are supposed to incorporate anticipated
costs, including the costs of complaint review and investigations and
routine oversight and enforcement, into their proposed fees. When the
Department approves fees, we plan to ensure that the accrediting entity
has budgeted for such expenses. In addition, Sec. 96.8(b)(2) provides
that ``separate fees based on actual costs incurred may be charged for
the travel and maintenance of evaluators.'' If an accrediting entity
finds that its actual expenses are far greater than it had anticipated
in creating its fee schedules, and its fees are not sufficient to cover
its operating expenses, it may apply to the Department to change its
fee schedule.
5. Comment: A commenter recommends that the Department allow
accrediting entities to revise their fee schedules from time to time
with the approval of the Department.
Response: Pursuant to Sec. 96.8(a), accrediting entities may
propose changes to an approved fee schedule, subject to approval by the
Department. Upon approval, the modified fee schedule will be made
available to the public.
6. Comment: A commenter thinks that the Complaint Registry should
be funded through a portion of accrediting fees or by the Department.
The commenter also believes that applicants for accreditation should
pay a single, non-refundable fee for pre- and post-accreditation/
approval work. The commenter requests, however, that the Department
clarify that public bodies, such as State licensing authorities, are
permitted to charge similar accrediting fees.
Response: Under this final rule, the Department retains the
discretion to determine how to fund the Complaint Registry, including
through fees collected by the accrediting entities and/or by the
Department. Section 96.8 explains the costs which may be included in
any fee for accreditation and approval, including costs for complaint
review and investigation and routine oversight and enforcement, and
requires any such fee to be non-refundable. The fee provisions apply to
any accrediting entity, including a public entity that has authority
under State law to collect accrediting fees.
Section 96.9--Agreement Between the Secretary and the Accrediting
Entity
1. Comment: A commenter states that there must be a mechanism in
the regulations to ensure consistent interpretations of the Convention,
the IAA, and the Department's regulations by accrediting entities
across geographic regions. The commenter requests that the Department
outline uniform standards in the regulations.
Response: These regulations do create uniform accreditation
standards and procedures for all accrediting entities. The criteria to
be used by all accrediting entities are listed in subpart F (and with
regard to temporarily accredited agencies in subpart N). The procedures
applicable to the accreditation process are provided in subparts D
through N, excluding F. The Department, in its oversight and monitoring
role, will ensure that all accrediting entities adhere to these uniform
standards and procedures. Please also see the response to comment 1 on
Sec. 96.66.
2. Comment: A commenter states that the Department should submit
all matters listed in Sec. 96.9 to a notice and comment period instead
of setting them by agreement. The commenter states that these subjects
are or may be crucial, and require an opportunity for public comment.
The commenter further believes that it is unlikely that the regulations
will be upheld in court unless the Department submits these matters to
notice and comment.
Response: Section 202(a) of the IAA requires the Department to
enter into agreements with one or more qualified accrediting entities
under which such entities will perform certain duties in accordance
with the Convention, the IAA, and these regulations. While the IAA
requires that the standards to be used by the accrediting entities to
accredit or approve agencies or persons to provide adoption services in
Convention cases be set by regulation, it does not require that the
Department's agreements designating accrediting entities be subject to
public comment--such a requirement would be unworkable. Nonetheless,
the Department will publish the final agreements in the Federal
Register.
Section 96.10--Suspension or Cancellation of the Designation of an
Accrediting Entity by the Secretary
1. Comment: A commenter asks how the Department will determine
whether accrediting entities are in substantial compliance with the
regulations. The commenter also requests clarification on how
accrediting entities will be given notice of any complaints or concerns
that may arise so that they have an opportunity to respond to the
concerns and to correct any deficiencies.
Response: The Department has added Sec. 96.10(b), which requires
the Department to notify an accrediting entity in writing of any
deficiencies in the accrediting entity's performance that could lead to
the cancellation or suspension of its designation as an accrediting
entity. The accrediting entity will be given an opportunity to
demonstrate that suspension or cancellation is unwarranted, in
accordance with mutually agreed upon procedures for handling complaints
against the accrediting entity established in the agreement between the
Department and the accrediting entity described in Sec. 96.9. Section
96.10(c) now lists the factors that the Department will consider to
determine whether an accrediting entity is substantially in compliance
with these regulations, the IAA, and the Convention.
2. Comment: A commenter asks whether accrediting entities will be
able to appeal any adverse decision by the Department regarding
cancellation or suspension without having to go to court.
Response: Under section 204(d) of the IAA, an accrediting entity
that is the subject of a final action of suspension or cancellation may
petition the United States District Court for the District of Columbia
or the United States District court in the judicial district in which
the accrediting entity is located to set aside the action by the
Department. The IAA does not provide for administrative review of
cancellation or suspension of an accrediting entity by the Department.
Section 96.10(b) of the rule now provides, however, that prior to the
action being taken, an accrediting entity will be given an opportunity
to demonstrate to the Department that suspension or cancellation would
be unwarranted.
Subpart C--Accreditation and Approval Requirements for the Provision of
Adoption Services
Subpart C is organized the same way as in the proposed rule, except
that the Department has added a new Sec. 96.15 (Examples) and
consequently renumbered Sec. 96.15 (Public domestic authorities) and
Sec. 96.16 (Effective date of accreditation and approval requirements)
as Sec. Sec. 96.16 and 96.17 respectively. Subpart C also contains
Sec. 96.12 (Authorized adoption service providers); Sec. 96.13
(Circumstances in
[[Page 8077]]
which accreditation, approval, or supervision is not required); and
Sec. 96.14 (Providing adoption services using other providers).
The Department made a number of changes to this subpart in response
to public comments, including changes to Sec. Sec. 96.12, 96.13, 96.14
and 96.15. As discussed above in addressing Sec. 96.4 comment 7, the
Department has added a new Sec. 96.12(c) to underscore that conferral
and maintenance of accreditation, temporary accreditation, or approval
is not tantamount to a guarantee that adoption services in specific
cases are performed consistently with the Convention, the IAA, the
regulations implementing the IAA, or any other applicable laws, but
rather establishes only that the accrediting entity has concluded that
the agency or person conducts adoption services in substantial
compliance with the applicable standards set forth in this part.
Section 96.13 has also been revised to clarify that, like Sec. 96.12,
it addresses services being provided in the United States in connection
with a Convention adoption.
As discussed in section III, subsection A of the preamble, above,
Sec. 96.14 of the final rule differs from the proposed rule in its
treatment of the responsibilities of a primary provider with respect to
its use of other providers of adoption services in the United States
and in Convention countries. The Department has revised Sec. 96.14(b)
and Sec. 96.14(d) to require that, except as otherwise provided, in
providing adoption services in the United States for a Convention case,
a primary provider must treat other accredited agencies, temporarily
accredited agencies, and approved persons as supervised providers under
its responsibility and supervision. The response to comment 1 on Sec.
96.14, below, discusses similar changes to Sec. 96.14(c), the result
of which is generally to require a primary provider to treat all non-
governmental foreign providers as supervised providers, consistent with
the standards in Sec. Sec. 96.46(a) and (b), regardless of whether
accredited by a Convention country, with a limited exception. The
exception is provided for in Sec. 96.14(c)(3), which allows a primary
provider to use any foreign provider in a Convention country to obtain
consents or perform a child background study in an incoming case, or to
perform a home study in an outgoing case, so long as the primary
provider verifies the provision of the service, in accordance with the
standards set out in Sec. 96.46(c).
Section 96.12--Authorized Adoption Service Providers
1. Comment: A commenter asks what will happen to intercountry
adoption cases already in progress once the Convention enters into
force.
Response: We have modified Sec. 96.12(a) to make explicit
reference to section 505(b) of the IAA and to clarify that cases in
progress are not within the scope of this rule. Section 505 of the IAA
establishes how entry into force of the Convention for the United
States will affect cases in progress (so-called ``pipeline cases''). In
general, adoption cases that are initiated, either in the United States
or in a Convention country, before the entry into force of the
Convention for the United States will not be treated as Convention
cases subject to the IAA. If any further transition rules prove to be
necessary, the Department will consider undertaking an additional
rulemaking procedure.
2. Comment: Commenters ask if an agency or person will need to be
accredited/approved if they handle adoptions from a country whose
ratification or accession to the Convention has not been recognized by
the United States. A commenter requests that the Department clarify
when an agency or person will be required to be accredited or approved
if they are handling intercountry adoption cases involving a country
that is in the process of ratifying the Convention.
Response: Once the Convention has entered into force for the United
States, an agency or person operating in the United States needs to be
accredited, temporarily accredited, approved, or supervised or exempted
only if it is performing adoption services in a Convention adoption. An
adoption will not be considered a Convention adoption unless the
Convention has entered into force between the United States and the
other country involved. The Convention will not be in force between the
United States and the other country if the other country has not yet
ratified, approved, or acceded to the Convention, or if the United
States does not recognize another country's accession to the
Convention, as permitted by Article 44 of the Convention in certain
circumstances.
With respect to the question of when agencies and persons handling
intercountry adoptions will need to be accredited or approved to handle
adoptions from countries whose subsequent ratification, approval, or
accession the United States recognizes, we expect that this question
will be largely governed by the other country's implementing
proclamation. We note, however, that under Articles 14 and 41 of the
Convention, we would expect the Convention to apply only to cases that
arise after the Convention enters into force between the United States
and the new Convention country, not to cases already in progress.
For a full list of countries that have already ratified or acceded
to the Convention, please refer to the Web site of the Hague Conference
on Private International Law at http://www.hcch.net. From the home
page, click ``Welcome,'' click ``Conventions'' from the left hand menu,
click Convention No. 33 in the list provided, and then click ``Status
table'' from the right hand menu. (The direct Web address is http://hcch.e-vision.nl/index_en.php?act=conventions.status&cid=69) If an
entry into force or ``EIF'' date appears in connection with a country,
and the United States has not objected to the accession (which would be
shown by clicking on ``A**'' in the Type column), then it is a
Convention country. The Web site also lists the countries, like the
United States, that have signed the treaty but for whom the treaty has
not yet entered into force.
3. Comment: A commenter is concerned that mandatory accreditation
will create a burden for agencies and persons. The commenter requests
that subpart C permit voluntary accreditation. The commenter also
recommends that the Department encourage agencies working in non-
Convention countries to seek accreditation voluntarily.
Response: Consistent with the Convention, section 201 of the IAA
creates a mandatory accreditation and approval system for Convention
adoptions. On the other hand, the IAA does not give the Department
authority to require accreditation or approval for non-Convention
cases. Thus no changes are warranted in light of these comments.
Section 96.13--Circumstances in Which Accreditation, Approval, or
Supervision Is Not Required
1. Comment: Several commenters believe that an exempted provider
should be a social work professional or organization that is performing
a home study but is not currently providing any other adoption service.
They believe this would allow the exempt organization to become a
supervised provider later, once a client selects a placing agency that
will require post-placement services from the home study provider.
Response: The Department has changed the definition of exempted
[[Page 8078]]
provider, as noted in the response to comment 9 on Sec. 96.2. The
changes to the definition are meant to clarify that the event that
triggers the accreditation/approval requirement is the provision of an
adoption service other than a home study or child background study.
Until an agency or person begins to provide such a non-exempt adoption
service in addition to a home study report (or child background study),
it is not required to be accredited or approved. (Note that the
Department has modified the language of Sec. 96.13(a) to remove a
repetitive restatement of the definition of exempted provider found in
Sec. 96.2; this modification does not change the fact that a home
study preparer or child background study preparer who is not currently
and has not previously provided any other adoption service in the case
is exempt from accreditation/approval.) If the exempted adoption
service provider is simultaneously or subsequently asked to perform an
additional adoption service in the case, however, the adoption service
provider at that time would be required to become accredited, approved,
or supervised before providing the additional adoption service in the
United States. The examples numbered 3, 5, and 6 in Sec. 96.15
illustrate the circumstances in which a home study provider is exempt
and circumstances in which the provider would need to become accredited
or approved or supervised. Example 4 in Sec. 96.15 illustrates
circumstances in which a child background study provider would be
exempt.
2. Comment: One commenter suggests that exempted providers should
be allowed to provide both home study services and post-placement
services, because no agency can easily survive performing only home
studies. Another commenter believes it is impractical to exempt only
home study services and not post-placement services.
Response: The IAA specifically includes post-placement monitoring
as an adoption service that requires an agency or person to be
accredited, temporarily accredited, approved, or supervised.
Like post-adoption services and child welfare services, post-
placement services other than post-placement monitoring are not
adoption services, as discussed in the response to comment 4 on Sec.
96.2. The change to the definition of exempted provider should clarify
that providers of home studies and/or child background studies in the
United States who have not performed any other adoption service in
connection with a case are exempted providers until they provide a
subsequent adoption service, such as post-placement monitoring. Thus a
provider may offer any combination of ``exempt services'' (child
background studies and home studies), child welfare services (such as
post-adoption services), and other non-adoption services (such as legal
services) in a case without being required to be accredited,
temporarily accredited, approved, or supervised. This is further
discussed in the response to comment 6, below, explaining changes to
Sec. 96.13(b) and (c). Please also see example 8 in Sec. 96.15,
regarding post-placement monitoring, for a concrete illustration.
3. Comment: Several commenters recommend that the home study or
child background study prepared by an exempted provider be submitted to
an accredited agency or temporarily accredited agency for review and
re-approval. The commenters assert that clarifying that the report will
be re-approved instead of approved denotes that the study was approved
first by the home study agency as required by State and Federal
regulations, and then was submitted to the accredited or temporarily
accredited agency for re-approval.
Response: The Department is not making this change because we
believe the rule, as written, addresses the commenter's concern. The
requirement in Sec. 96.13(a) of these regulations that a study
prepared by an exempted provider must be ``approved'' refers to the new
approval requirement mandated by section 201(b)(1) of the IAA. In order
to get this section 201(b)(1) approval by an accredited agency or
temporarily accredited agency, Sec. 96.47(c) requires a determination
that the home study was performed in accordance with 8 CFR 204.3(e) and
applicable State law. Therefore, under these regulations, home studies
must comply with any applicable State approval requirements, 8 CFR
204.3(e), and the IAA requirement that the home study be approved by an
accredited or temporarily accredited agency.
4. Comment: Several commenters believe that the regulations should
not exempt home study or child background study providers from the
accreditation/approval process. One commenter requests that, at a
minimum, home study and child background study providers be supervised
providers. Some commenters support the exemption of home study and
child background study providers from accreditation/approval.
Response: Section 201(b)(1) of the IAA clearly exempts the
providers of home studies and child background studies in the United
States from accreditation/approval requirements if such providers are
not providing any other adoption service in the case.
There are other protections covering the completion of home studies
and child background studies by exempted providers. The preparer of the
home study or child background study must comply with other applicable
Federal and State laws and regulations concerning the preparation of a
home study or child background study. As an added measure of guidance
and protection, the reports must be approved by an accredited agency or
temporarily accredited agency who, under Sec. 96.47(c), must determine
that such laws have been complied with, and that all information
required by these regulations has been included. These protections will
help to ensure that the home studies and child background studies
prepared by exempted providers comply with Convention requirements, the
IAA, and these regulations.
5. Comment: A commenter asks whether U.S. social workers licensed
in the United States who live abroad and perform home studies and post-
adoption services for Americans overseas need to be accredited or
approved. If we understand the comment correctly, such U.S. social
workers often assist individual U.S. clients and U.S. child-placing
agencies, but the laws of the country in which they are living may
preclude their working as an employee of a U.S. agency. Thus, such a
social worker cannot be an employee of an accredited agency or approved
person under these regulations.
Response: A U.S. licensed social worker living abroad and providing
post-adoption services and home studies will have to comply with the
laws of the country of residence, which may preclude the social worker
from being employed directly by an agency or person accredited or
approved under these regulations. Such a social worker will not have to
be independently accredited or approved under these regulations. In
some circumstances, however, an accredited agency or approved person in
the United States will be held responsible under these regulations for
treating an independent overseas U.S. licensed social worker as a
supervised provider, for example, if the social worker is asked to
assist an accredited agency or approved person by performing home
studies in cases involving immigration to the United States or by
performing post-placement monitoring. If the independent overseas
social worker is providing a home study
[[Page 8079]]
in an outgoing case, an accredited agency or approved person would also
be able to use a home study prepared by the social worker if it
verified the study pursuant to Sec. 96.46(c).
6. Comment: A commenter recommends requiring that agencies or
persons be accredited or approved if performing a home study/child
background study and providing a child welfare service.
Response: The proposed rule caused some confusion as to the
circumstances in which accreditation, temporary accreditation,
supervision, or approval will be required. Confusion is difficult to
avoid, in part, because section 201 of the IAA both includes home
studies and child background studies in the definition of adoption
services covered by the accreditation/approval/supervision requirement
and provides that preparing these studies is a service exempt from
accreditation/approval/supervision in certain circumstances.
The Department is changing Sec. 96.13(b) to state the rule more
clearly. As modified, Sec. 96.13(b) states that, if an agency or
person provides both a child welfare service and any of the adoption
services listed in Sec. 96.2 in the United States in a Convention
case, it must be accredited, temporarily accredited, approved or
supervised unless the only adoption service provided is preparation of
a home study and/or a child background study. Thus, if the agency or
person is an exempted provider and provides a child welfare service,
the agency or person is still an exempted provider. It will remain
exempted from accreditation/approval even if, in addition to providing
child welfare services it also provides a home study, child background
study, or both.
Otherwise the home study and child welfare services exemptions,
explicitly required by the IAA, would have little force. On the other
hand, if an agency or person provides an adoption service in the United
States in addition to the child background study or home study, then
that agency or person must be accredited, temporarily accredited,
approved or supervised. For further clarification, the Department has
added at Sec. 96.15 examples illustrating circumstances when providers
must be accredited, temporarily accredited, approved, or supervised,
and examples of when they are exempt. Examples 2 and 5 of Sec. 96.15
specifically address the child welfare services exemption.
To be consistent with Sec. 96.13(b), the Department has also
modified Sec. 96.13(c) so that, if an agency or person provides both
legal services and any adoption service defined in Sec. 96.2 in the
United States in a Convention adoption case, it must be accredited,
temporarily accredited, approved or supervised unless the only adoption
service provided is preparation of a home study and/or a child
background study.
7. Comment: A commenter is concerned that facilitators, permitted
to operate under some States' laws and not others, will be exempt from
becoming accredited or approved. The commenter believes that this will
provide unlicensed facilitators an unfair advantage by permitting them
to provide services without adhering to State or Federal licensing
laws.
Response: Any agency or person that provides one of the adoption
services defined in Sec. 96.2 in the United States must be accredited,
temporarily accredited, approved, supervised, or an exempted provider
under these regulations, regardless of whether or not the agency or
person must be licensed or otherwise authorized in the State in which
they operate. Furthermore, providers must still comply with any other
applicable State and Federal laws.
8. Comment: A commenter is concerned that the regulations do not
protect parents who try to adopt independently, without the aid of an
agency or person. The commenter believes that such parents may be
particularly susceptible to questionable adoption practices. Also, one
commenter thinks that parents adopting independently should not be
exempt from the regulations. Other commenters suggest that adoptive
parents should not have to comply with the Convention, the IAA or other
applicable laws when acting on their own behalf.
Response: Because section 201(b)(4) of the IAA explicitly exempts
prospective adoptive parent(s) who are acting on their own behalf from
any accreditation/approval requirements, Sec. 96.13(d) is retained in
the final rule. Notwithstanding this exemption, prospective adoptive
parent(s) acting independently must comply with the Convention, other
applicable provisions of the IAA, and other applicable laws. Moreover,
as provided in Sec. 96.13(d), parent(s) may act on their own behalf
only if such action is allowed under applicable State law and the law
of the concerned Convention country.
9. Comment: A commenter requests that the regulations emphasize
that ``post-adoption services,'' including reminding the prospective
adoptive parent(s) of their need to file post-adoption reports with the
country of origin, are not ``adoption services.''
Response: The commenter is correct that post-adoption services--
those services provided after a child's adoption--are not adoption
services under the IAA. The preparation of post-adoption reports and
efforts to encourage parents to file these reports are post-adoption
services. Agencies or persons that solely perform such types of post-
adoption services do not need to be accredited, temporarily accredited,
approved, or supervised. The Department does not consider any change to
the regulation to be necessary in response to this comment.
10. Comment: One commenter notes that several foreign governments
require adoptive parent(s) to use an agency or person for post-adoption
reporting. The commenter states that many agencies and persons
currently take advantage of this requirement by overcharging adoptive
parent(s) for these services. The commenter requests that the
Department attempt to regulate this behavior.
Response: The preparation and filing of post-adoption reports are
post-adoption services. The IAA does not cover such services, or
provide a basis to regulate the fees charged for them. Nevertheless,
Sec. 96.40(b)(7) requires an accredited agency, temporarily accredited
agency, or approved person to disclose in writing its expected fees and
estimated expenses for any post-placement or post-adoption reports that
the agency or person or parent(s) must prepare in light of any
requirements of a child's expected country of origin. The Department
believes that this requirement will help prospective adoptive parent(s)
to make informed choices when choosing an agency or person and will
promote fair and ethical fee arrangements.
11. Comment: One commenter requests that the Department draft a
``non-interference'' regulation that prohibits agencies and persons
from interfering in an adoption when prospective adoptive parent(s) act
on their own behalf.
Response: The Department does not believe that it is necessary at
this time to include a non-interference provision, assuming that one
germane to accreditation/approval could be crafted. If a prospective
adoptive parent believes that an accredited agency or approved person
is acting incompatibly with the IAA's exemption of prospective adoptive
parent(s) acting on their own behalf from the accreditation/approval
requirements, the complaint procedures of this rule will apply.
Section 96.14--Providing Adoption Services Using Other Providers
1. Comment: Several commenters are concerned about the relationship
between a primary provider and entities accredited by Convention
countries
[[Page 8080]]
(foreign accredited providers). Many want the regulations to reach as
many types of providers who operate overseas as possible, while others
stress that U.S. agencies and persons are not able to control or
oversee the conduct of foreign providers. Some commenters want primary
providers to be responsible for supervising the actions of every agency
or person they use overseas, but others support the proposed rule,
under which primary providers were not responsible for supervising
foreign accredited providers.
Response: The issue of who a primary provider must treat as under
its supervision and responsibility is clearly one on which reasonable
people differ.
As explained at section III, subsection A of the preamble, above,
the Department has modified Sec. Sec. 96.14(c) and (d) to require that
providers accredited by the Convention country, in addition to
providers that are unregulated by the Convention country, be treated as
foreign supervised providers, unless they are performing a service
qualifying for verification under Sec. 96.46(c). A primary provider
will therefore need to exercise care in selecting foreign supervised
providers, and will need to oversee their work; it may lose its status
as an accredited agency or approved person if it fails to ensure that
its use of foreign supervised providers meets the relevant standards in
Sec. 96.46.
This change in the regulations is consistent with the Department's
view--made express in new Sec. 96.12(c)--that accreditation is not a
guarantee of good behavior. It also underscores the importance of U.S.
agencies or persons working with ethical providers in other countries
in order to ensure that all Convention adoptions comply with Convention
standards. The final rule means that primary providers cannot ignore
questionable practices simply because they are committed by a foreign
provider that has been accredited. While the exception for services
qualifying for verification acknowledges that U.S. agencies and persons
may not be well positioned to supervise the providers of such services,
the after-the-fact verification requirement will require the U.S.
agency or person acting as the primary provider to take appropriate
steps to ensure that the requirements of the Convention and local law
have been met.
2. Comment: Some commenters state that primary providers should be
fully responsible for all ``agents'' and individuals that assist them
in the country of origin.
Response: Under the IAA and this rule, whether a primary provider
must supervise an ``agent'' or other individual in a Convention country
does not turn on what the provider is called. Section 96.14 requires
that a primary provider adhere to the standards of Sec. 96.46 when
using any foreign non-governmental provider, and Sec. 96.2 now makes
clear that ``agents'' and other foreign entities are included in the
definition of supervised provider. These modifications to the
regulations are sufficient to address this comment.
3. Comment: One commenter notes a Connecticut case in which the
court refused to award a State subsidy to an adoptive parent--
presumably located in Connecticut--because the entity that ``placed''
the child was not licensed in Connecticut, and suggests that the
Department address the interpretation of State statutes regarding the
award of post-adoption subsidies through these regulations.
Response: The Department infers that the commenter believes that
the Department could affect when State subsidies are available by
including in the regulation a provision regarding, for example, whether
a primary provider or a supervised provider will be considered to have
``placed'' a child for adoption, or where an adoption service provider
will be deemed to be located, if multiple providers are involved in a
Convention adoption. The Department does not agree that this issue can
or should be addressed in these regulations.
4. Comment: A commenter requests that the Department change Sec.
96.14(b)(2) because, as written, it appears that home studies performed
by an exempted provider must be approved by any accredited agency, but
not specifically by the primary provider. Other commenters suggest
primary providers could be reluctant to accept home studies from
exempted providers that they themselves did not approve.
Response: The Department is not making the change suggested because
the Department believes that the regulation, as written, is consistent
with the IAA, section 201(b)(1), which requires only that a home study
prepared by an exempted provider be reviewed and approved by an
accredited agency. We do not believe it is necessary to require further
that the accredited or temporarily accredited agency approving the home
study be the primary provider in the Convention case, and do not
believe that this provision will deter primary providers from accepting
home studies from exempted providers. While the primary provider must
supervise and be responsible for the supervised providers with which it
works, primary providers may need the flexibility to accept home
studies prepared by exempted providers that have been approved by other
accredited or temporarily accredited agencies (for example those
located in other States) to complete Convention adoptions. Otherwise,
primary providers could find it difficult to work with out-of-State
prospective adoptive parent(s).
5. Comment: A commenter is concerned that small agencies will have
trouble finding work as supervised providers because large accredited
agencies will attempt to curb competition by performing all services in
a case on their own, and recommends that, in lieu of having primary
providers supervise other agencies, the Department step into the role
of supervisor of the provision of adoption services by smaller
agencies.
Response: It would be incompatible with the IAA's scheme for
Convention implementation for the Department to take on a direct role
in supervising the provision of adoption services, and we therefore
decline to make any change in response to this comment. As well, we
note that temporary accreditation, under section 203(c) of the IAA, is
meant to address this commenter's concerns, by providing a mechanism to
allow small agencies to continue to operate independently of larger
agencies, while giving the small agencies a longer period of time to
gather the information and resources necessary to achieve full
accreditation. Moreover, while we cannot fully predict at this time the
public demand for provision of adoption services in Convention cases,
we believe that it is unlikely that accredited agencies or approved
persons will have the resources to take over providing all of the
adoption services that are currently handled by small agencies or
persons. Also, when working with out-of-state clients, accredited
agencies and approved persons will likely need supervised providers to
provide adoption services in States where they are not licensed. Thus,
the Department anticipates that small agencies and persons will
continue to be able to provide services in Convention adoptions.
6. Comment: One commenter requests that the Department specifically
outline what services require an agency or person to be accredited or
approved.
Response: Only an agency or person providing adoption services, as
defined in the IAA and in Sec. 96.2, in a Convention adoption in the
United States is required to be accredited or approved. An agency or
person may avoid accreditation or approval if it provides Convention
adoption services
[[Page 8081]]
solely as a supervised provider or exempted provider. Section 96.15
provides examples of circumstances in which an adoption service
provider will be required to be accredited, temporarily accredited, or
approved or to operate as a supervised provider or exempted provider.
Section 96.16--Public Domestic Authorities
Comment: The Department received a comment stating that it should
require public domestic authorities providing adoption services to
become accredited just like private entities, because it is
``hypocritical'' for the U.S. Government to have one set of rules for
private agencies and a different set for public domestic authorities.
Response: While initial draft versions of the IAA did not exclude
government agencies from the category of persons to be accredited or
approved, (S. 682, 106th Cong. 1st Sess. (1999) and H.R. 2342, 106th
Cong. 1st Sess. (1999)), sections 3(14) and 201(a) of the IAA as
enacted, taken together, provide that persons to be accredited/approved
shall not include an agency of government or tribal government entity,
thereby excluding public domestic authorities from the accreditation
and approval requirement. The Department understands this to exclude
all State, local and tribal government entities--an approach that is
consistent with the concerns of the Convention's drafters about abuses
by private entities and that avoids placing the Federal government in
the role of regulating State and local governments unnecessarily. (See
the Notice of Proposed Rulemaking at 68 FR 54079 for further discussion
of this issue.)
Section 96.17--Effective Date of Accreditation and Approval
Requirements
Comment: A commenter asks what will happen to an agency that has
not completed the accreditation process when the Convention enters into
force.
Response: Once the Convention enters into force for the United
States, any agency or person providing adoption services in connection
with a Convention adoption in the United States will need to be
accredited, temporarily accredited, approved, supervised, or be an
exempted provider. The rule has a special timetable for the initial
round of accreditation/approvals, which is discussed in the section-by-
section responses for subpart D.
Subpart D--Application Procedures for Accreditation and Approval
Subpart D is organized in the same way as in the proposed rule, and
includes Sec. 96.18 (Scope); Sec. 96.19 (Special provision for
agencies and persons seeking to be accredited or approved as of the
time the Convention enters into force for the United States); Sec.
96.20 (First-time application procedures for accreditation and
approval); Sec. 96.21 (Choosing an accrediting entity); and Sec.
96.22 (Reserved).
As discussed below, the Department has made no changes to this
subpart in response to public comment. It has made minor technical and
conforming changes, however.
Section 96.19--Special Provision for Agencies and Persons Seeking To Be
Accredited or Approved at the Time the Convention Enters Into Force for
the United States
Comment: Commenters support the transitional application deadline
(TAD) and deadline for initial accreditation or approval (DIAA)
process. Some request that the regulations more clearly outline the
process for those who obtain accreditation after the Convention has
entered into force. Another commenter suggests that any agency or
person that has applied for full accreditation during the initial
accreditation/approval timeframe, but that has not been processed by an
accrediting entity through no fault of its own, should be granted
temporary accreditation.
Response: We are not modifying the rule to allow temporary
accreditation to be granted to an applicant for full accreditation that
has not been accredited by the DIAA. The IAA specifically limits
temporary accreditation to small agencies, as defined in section 203(c)
of the IAA. The Department recognizes, however, that a large volume of
applications may make it difficult for accrediting entities to complete
accreditations and approvals in an expedited fashion. For this reason,
Sec. 96.19 establishes that a TAD will be published before the final
DIAA. After the Department learns the number of agencies and persons
that applied by the TAD, and has an estimate of how long it will take
the accrediting entities to evaluate each applicant (including
conducting necessary site visits), it will announce the DIAA. The DIAA
will be the date by which an agency or person must complete the
accreditation or approval process so as to be accredited or approved
when the Convention enters into force for the United States. Since the
DIAA will be set after the Department and the accrediting entities have
a better idea of how long it will take the accrediting entities to do
their job, all agencies and persons who applied by the TAD should have
a reasonable opportunity to have their applications for accreditation
or approval reviewed by the DIAA. The process for applying for
accreditation/approval after the Convention has entered into force is
already described in Sec. 96.20.
Section 96.20--First-Time Application Procedures for Accreditation and
Approval
Comment: A commenter believes that the regulations should specify
the length of time an accrediting entity has to evaluate an applicant
for accreditation or approval, and suggests 90 days.
Response: While the Department wants to ensure that applications
for accreditation and approval are reviewed as quickly as possible, it
is not establishing a deadline by which accrediting entities will have
to complete their work. Variables like the number of agencies and
persons that will apply, and the number and capacity of the accrediting
entities, require that the time frame remain flexible. In addition,
Sec. 96.24(d) authorizes accrediting entities to give agencies and
persons an opportunity to cure deficiencies before denying an
application for accreditation or approval. If the Department imposed a
90-day limit on completion of accreditation and approval decisions,
accrediting entities could be forced to deny applications in
circumstances where an agency or person had not yet cured any
identified deficiencies within 90 days. We believe agencies and persons
will benefit from an accreditation and approval process that retains
some flexibility.
Section 96.21--Choosing an Accrediting Entity
Comment: Some commenters recommend that applicants for
accreditation and approval be allowed to apply to any designated
accrediting entity, regardless of geographical location. Other
commenters ask that the regulations clarify the accrediting entity to
which an agency or person that is licensed in more than one State
should apply for accreditation or approval.
Response: Section 96.21(a) states that an agency or person applying
for accreditation or approval may apply to any accrediting entity with
jurisdiction over its application. The criteria to determine the
accrediting entities' jurisdiction will be set out in the
[[Page 8082]]
agreements between the Department and each accrediting entity. These
agreements will be published in the Federal Register. The agreements
between the Department and any accrediting entity that is a State
licensing authority will have geographical limitations on its
jurisdiction that are consistent with section 202(a)(2)(B)(ii) of the
IAA, which states that public entities designated as accrediting
entities will be permitted to accredit ``only agencies located in the
State in which the public entity is located.''
Subpart E--Evaluation of Applicants for Accreditation and Approval
Subpart E is organized in the same way as in the proposed rule, and
includes Sec. 96.23 (Scope); Sec. 96.24 (Procedures for evaluating
applicants for accreditation or approval); Sec. 96.25 (Access to
information and documents requested by the accrediting entity); Sec.
96.26 (Protection of information and documents by the accrediting
agency); Sec. 96.27 (Substantive criteria for evaluating applicants
for accreditation or approval), and Sec. 96.28 (Reserved).
The Department has made a number of changes in response to public
comments, including to Sec. 96.24, Sec. 96.25, Sec. 96.26, and Sec.
96.27, which are discussed below.
Section 96.24--Procedures for Evaluating Applicants for Accreditation
or Approval
1. Comment: Several commenters request that the Department address
whether agencies that have undergone voluntary accreditation, as
offered by the Council on Accreditation (COA), will have any ``deemed
status.'' Similarly, several commenters request that, if an agency or
person is already voluntarily accredited, then the accrediting entity
recognize automatically compliance with certain subpart F standards
that they believe are duplicative of the standards under which they
were voluntarily accredited. Some voluntarily accredited small agencies
contend that they cannot afford a second accreditation.
Response: The Department will not allow agencies or persons that
have undergone a voluntary accreditation process to have ``deemed''
Convention accreditation or approval status. The Department
acknowledges that some standards of subpart F overlap with the COA
voluntary accreditation standards, however, there are many standards in
subpart F that do not overlap. We do not believe that COA voluntary
accreditation is a substitute for ensuring that all agencies meet the
specific standards on intercountry adoption practices that are derived
from the Convention and the IAA and set forth in subpart F. For
example, Sec. 96.33(b) requires an agency's or person's finances to be
subject to independent audits every four years. COA standard G6.5.02
does not require any audit of an organization that annually reports
revenues less than $500,000. Similarly, Sec. 96.34(a) prohibits an
agency or person from compensating any individual providing
intercountry adoption services on a contingent fee basis, and Sec.
96.34(b) prohibits an agency or person from compensating its directors,
officers, employees or supervised providers on a contingent fee basis.
COA standards have no explicit prohibition against contingent fees. The
regulation in Sec. 96.35(b) also contains requirements that are not in
COA standards. The COA standards are focused on overall organizational
integrity and ensuring best child welfare practices. The Department's
standards are instead focused on implementing specific provisions of
the IAA and ensuring that agencies and persons can perform Convention
tasks. Finally, considerations of equity and timeliness counsel against
allowing a COA voluntary accreditation to substitute, in whole or in
part, for accreditation under these regulations--equity vis-[aacute]-
vis agencies and persons who have not participated in COA's voluntary
program and timeliness to the extent that accreditation under these
regulations will be based on information to be collected in the future
and closer to time to entry into force.
2. Comment: Several commenters ask that agencies and persons that
have a State license become automatically accredited. Other commenters
seek deeming of State licensing authorities' standards.
Response: The IAA does not authorize the Department to substitute
licensure by a State for accreditation/approval under the Federal
scheme created by the IAA. The Convention and the IAA mandate many
specific duties for agencies and persons, including reporting duties,
which are not part of current State licensing. In addition, because
licensing requirements vary between States, allowing ``deeming'' would
be at odds with the IAA's goal of uniform interpretation and
implementation of the Convention, IAA section 2(a)(2), and might lead
to disparities between agencies and persons, depending on their
location. Thus, the fact that an agency or person is licensed or
authorized by State licensing authorities is only one factor to
consider in determining whether it can be accredited or approved.
3. Comment: A commenter notes that the nonprofit charitable
organization she works with cannot place children with adoptive parents
because it has just received State licensure as a child-placing agency,
and the authorities in the foreign country in which it works require a
child-placing agency to have been licensed at least four years before
it is allowed to place children. The commenter expresses hope that the
Department will be able to resolve the issue of differing standards in
different countries in this rule, and welcome new agencies into the
Convention system.
Response: The Department welcomes all agencies and persons, both
new and old, to apply for accreditation or approval. The Department
hopes that birth parents and prospective adoptive parent(s) will be
able to select a provider from a broad and geographically diverse pool
of accredited agencies and approved persons to help them with
Convention adoptions. Article 12 of the Convention, however, states
that an agency that is accredited in one Convention country may provide
services in another Convention country only if it has been authorized
to do so by the authorities of both countries. Thus, the United States
cannot, in this rule, ensure that U.S. accredited agencies and approved
persons will be entitled to work in all Convention countries. The
Department expects, however, that because the standards for U.S.
accreditation and approval will be stringent and comprehensive,
Convention countries may be willing to accept U.S. accreditation or
approval, without requiring further accreditation or approval.
4. Comment: One commenter notes that the proposed regulation would
require evaluators to have experience in intercountry adoption or the
evaluation of compliance with standards. While the commenter believes
it would be preferable to require experience with both, because it
expects that any entity designated as an accrediting entity would
receive an initial flood of accreditation/approval applications, it
requests that Sec. 96.24(a) be revised to allow the use of a wider
pool of evaluators who do not have intercountry adoption experience in
order to complete accreditation/approval on a timely basis. Another
commenter would like the regulation to specify that at least one
evaluator participating in site visits must have experience with
intercountry adoption.
Response: The Department has expanded the qualifications for
[[Page 8083]]
evaluators in Sec. 96.24(a). Those qualifications now include: (1)
Expertise in intercountry adoption; (2) expertise in standards
evaluation; or (3) experience with the management or oversight of a
child welfare organization. The Department believes that permitting
evaluators to meet any of these three qualifications will ensure that
accrediting entities perform high-quality evaluations of agencies and
persons, while leaving them flexibility to find enough qualified site
evaluators. To preserve flexibility, we are not mandating that the
visiting site evaluator be the one with the intercountry adoption
experience.
5. Comment: Some commenters are concerned that the accrediting
entities will not consider complaints when evaluating agencies and
persons.
Response: We have added a provision to Sec. 96.24(b) to require
that accrediting entities consider complaints referred to them under
subpart J of this rule when reviewing an agency's or person's
accreditation or approval status.
6. Comment: A commenter asks whether an agency seeking
accreditation must cover the cost of any off-site interviews with
individuals (e.g., clients who have moved to a different city from the
agency).
Response: Pursuant to Sec. 96.8(b)(2), agencies and persons will
pay a nonrefundable fee for full accreditation or approval that is set
to include ``the costs of all activities associated with the
accreditation or approval cycle, including but not limited to, costs
for completing the accreditation or approval process * * * except that
separate fees based on actual costs incurred may be charged for the
travel and maintenance of evaluators.'' Thus, an agency or person can
be expected to cover the cost of doing any off-site interviews, whether
the cost is incorporated fully into the accreditation or approval fee
or recovered in part through fees for travel costs incurred by
evaluators to do off-site interviews.
The fee arrangement is different for those agencies seeking
temporary accreditation, but the net result is the same with respect to
off-site interviews. The accrediting entity will charge a non-
refundable fee for temporary accreditation that will not include the
costs of site visits, whether on-or off-site, because a site visit is
not mandatory to receive temporary accreditation. If the accrediting
entity decides a site visit is necessary to determine whether to
approve an application for temporary accreditation, the accrediting
entity will assess additional fees to the agency for the costs of a
site visit, including any costs for off-site interviews.
7. Comment: A commenter requests the following revision to Sec.
96.24(d) to make notice of deficiencies to a candidate for
accreditation or approval mandatory: ``Before deciding whether to
accredit an agency or approve a person, the accrediting entity shall
advise the agency or person of any deficiencies that may hinder or
prevent its accreditation or approval and defer a decision to allow the
agency or person to correct the deficiencies.''
Response: The Department has not changed the language of the
proposed rule. Section 96.24(d) already permits an accrediting entity
discretion to give an agency or person advance notice of and an
opportunity to cure any deficiencies that may hinder or prevent its
accreditation or approval. The accrediting entities are being chosen
based on their expertise and experience with accreditation and/or
licensing of adoption service providers, and the rule defers to that
expertise by giving them discretion to judge whether it would be
constructive to give notice and an opportunity to cure deficiencies
before any specific denial.
8. Comment: One commenter notes that Sec. 96.24(c) provides for
persons with knowledge of an agency's or person's work to comment on an
application for accreditation or approval, but that the Department has
not provided a mechanism for making such comments. The commenter states
that knowledgeable individuals have no way of knowing whether an agency
or person has filed for accreditation or approval.
Response: This issue is not addressed fully in the regulation, but
will be further addressed in the agreements with the accrediting
entities. Pursuant to Sec. 96.91(b)(1), once the Convention has
entered into force, individuals who wish to comment on an agency's or
person's application for accreditation or approval may ask an
accrediting entity to confirm whether that agency or person has a
pending application for accreditation or approval. The Department
intends, in its agreements with the accrediting entities, to require
that the accrediting entities also make available to the public
information related to agencies and persons that apply to be accredited
or approved by the date of entry into force. We also intend to address
in the agreements with the accrediting entities the mechanism by which
the public can communicate to the accrediting entity comments on
initial applications for accreditation or approval. The agreements will
be published in the Federal Register.
Section 96.25--Access to Information and Documents Requested by the
Accrediting Entity
1. Comment: Several commenters ask the Department to clarify
whether accrediting entities are allowed access to information and
documents belonging to an agency or person regarding non-Convention
cases. These commenters request that the Department specifically limit
the accrediting entity's access to information and documents to
Convention adoption cases only.
Response: The Department has modified this section to clarify that,
with the exception of first-time applicants for accreditation or
approval, agencies and persons are only required to give accrediting
entities access to adoption case files related to Convention adoptions.
Thus, if an agency seeking renewal of accreditation provides adoption
services relating to both children from a Convention country and
children from a non-Convention country, the agency or person would have
to give the accrediting entity access to any adoption case files
relating to intercountry adoptions with the Convention country, but not
to the files relating solely to its intercountry adoptions from the
non-Convention country. The exception to this rule, which now appears
at Sec. 96.25(b), is that the accrediting entity may review case files
of non-Convention adoption cases for the purpose of assessing a first-
time applicant's capacity to comply with the record-keeping and data-
management standards in subpart F. We make this exception so that
accrediting entities have the option of reviewing adoption case files
of a first-time applicant if they are concerned about the applicant's
record-keeping capabilities, since the applicant will not have any
Convention case files to be reviewed. Section 96.25(b) makes it clear
that, if such review is requested by an accrediting entity, the agency
or person may withhold names and other information that identifies
birth parent(s), prospective adoptive parent(s), and adoptee(s) from
such non-Convention adoption case files to protect the privacy of those
individuals.
The general rule prohibiting review of non-Convention adoption case
files does not apply with respect to documents and information, such as
policy guidelines, that relate to both Convention and non-Convention
adoptions. The accrediting entity must be given access to such
documents and information. For example, accrediting entities will be
allowed to look at documents relating to an agency's or
[[Page 8084]]
person's finances and corporate governance, which relate to both
Convention and non-Convention adoption activities.
2. Comment: A commenter suggests that the Department amend Sec.
96.25(a) so that it reads: ``The agency or person must give the
accrediting entity access to all information and documents * * * that
it requests [instead of ``requires''] to evaluate an agency or
person,'' in order to remove any argument that the accrediting entity
would be required to justify why access to certain documents or
information was necessary to the accreditation process.
Response: The Department has modified Sec. 96.25(a) so that it
states that an agency or person must give the accrediting entity access
to information and documents ``that it requires or requests'' to
evaluate an agency or person for accreditation or approval. This should
make it clear (subject to the general rule prohibiting review of non-
Convention adoption case files) both that the agency or person must
give the accrediting entity the information and documents it needs,
even if not requested by the accrediting entity, and that the agency or
person must give the accrediting entity what the accrediting entity
requests, without challenging whether the accrediting entity needs the
information and documents.
Section 96.26--Protection of Information and Documents by the
Accrediting Entity
1. Comment: Several commenters request that all documents used by
an accrediting entity in the accreditation process be made available to
the public, subject only to existing Federal, State, and local laws.
They suggest that the documents could help prospective adoptive
families choose which agency or person to use for adoption services.
Commenters also request that an agency's or person's list of supervised
providers (particularly foreign supervised providers) be public
information. These commenters want Sec. 96.26(a), which sets limits on
disclosure of information procured by the accrediting entity, to be
deleted. Other commenters recommend that the Department maintain Sec.
96.26(a) as it is written. They believe that confidentiality is
essential to facilitating an open relationship between accrediting
entities and agencies and persons seeking accreditation/approval. Some
commenters think subpart M appropriately specifies the types of
information that should be provided to the public. One State licensing
authority requests that the Department elaborate on the interplay
between the Freedom of Information Act (FOIA), 5 U.S.C. 552 and Sec.
96.26, because it believes Sec. 96.26 conflicts with the FOIA.
Response: We have made a few changes to Sec. 96.26(a). Section
96.26(a) continues to require accrediting entities to protect from
unauthorized use and disclosure all documents and information the
accrediting entity may collect while doing its job of evaluating an
agency or person, such as self studies, internal policies, corporate
financial data, and background information on individual employees. We
are not deleting the basic rule of confidentiality, because we believe
it is appropriate when agencies and persons are being asked to disclose
internal business information.
In order to clarify in what circumstances information may be
disclosed, and to reinforce that the confidentiality rule does not
prohibit disclosures otherwise required under State or Federal law, we
have moved and revised language from Sec. 96.26(a) to a new Sec.
96.26(b). Section Sec. 96.26(b) now contains the general prohibition
on disclosure of such documents and information to the public, and sets
out the circumstances in which it is appropriate to release
information. In particular, Sec. 96.26(b)(2) now includes new language
making it clear that the accrediting entity may not withhold
information, including an agency's or person's internal documents, if
otherwise required to release it under State or Federal law. We note
that Sec. 96.26 of the final rule cannot conflict with the FOIA or
similar State laws because the prohibitions against disclosure in Sec.
96.26(b)(2) do not apply if disclosure is otherwise required under
Federal or State laws. Thus, if the FOIA or other information
disclosure laws apply, accrediting entities must comply with those
laws.
2. Comment: A commenter requests that the Department delete the
first sentence of Sec. 96.26(b) (now Sec. 96.26(c)), which allows
agencies and persons to provide documents in which individually
assigned codes have been substituted for personal identifying
information, because it believes monitoring the actual practices of an
agency or person requires a comprehensive list identifying all clients,
including prospective adoptive parent(s) and birth parent(s), and
because it believes the provision is unnecessary because the remainder
of the provision already imposes a duty of confidentiality on the
accrediting entity.
Response: The Department has to balance the need of accrediting
entities to obtain information on the practices of accredited agencies
and approved persons against the need to protect the privacy of
individual participants in the adoption process. The Department
believes that this provision, now Sec. 96.26(c), strikes the right
balance between these competing interests by giving accrediting
entities the authority to request information that identifies birth
parents, prospective adoptive parent(s), and adoptees if they have an
articulated need for that information, but not requiring the automatic
disclosure of all such information, and thus it has made no changes in
response to this comment.
Section 96.27--Substantive Criteria for Evaluating Applicants for
Accreditation or Approval
1. Comment: Several commenters suggest that using a point system
for evaluating compliance with standards will be too subjective. Many
also believe that a substantial compliance system is too vaguely
defined in the regulations. Some request that the regulations specify
how different standards will be weighted. Other commenters commend the
Department for allowing accrediting entities to develop a substantial
compliance system and express support for the rule as written. Some
commenters request that the Department submit any substantial
compliance procedures to notice and comment rulemaking. Other
commenters recommend that any system prevent an agency or person from
achieving accreditation or approval if it does not meet all minimum
requirements in section 203(b)(1)(A)-(F) of the IAA.
Response: The Department did not think it was advisable to include
a methodology for measuring substantial compliance in the rule, and
continues to be of that view. The accrediting entities, who will be
using the methodology and who will have more experience than the
Department in administering standards, should take the lead in
preparing the procedures for measuring substantial compliance.
We have, however, revised Sec. 96.27(d) to clarify that the
Department will retain oversight over the development and use of
substantial compliance procedures by the accrediting entity, ensuring
that each accrediting entity only uses a method approved by the
Department, and that each method is substantially the same as all other
approved methods. In accordance with the rule, once an accrediting
entity is selected, the entity must develop a method of evaluating
compliance. Each such method will include: an assigned value for each
standard or element of a standard; a method of rating compliance with
each standard; and a method of evaluating an
[[Page 8085]]
agency's or person's overall compliance with all of the applicable
standards. The Department must then approve each accrediting entity's
method for ascertaining substantial compliance, ensuring that the value
assigned to each standard reflects the Convention and the IAA and is
consistent with the value assigned to the standard by other accrediting
entities. The weighting of particular standards will be based on the
priorities set in the Convention and the IAA (including the core
standards in IAA section 203(b)(1)(A)-(F)).
The Department does not agree that substantial compliance
procedures, when developed, must or should be subject to Administrative
Procedure Act rulemaking procedures. The final rule, like the proposed
rule, instead requires that accrediting entities advise applicants of
the value assigned to the standards or elements of the standards at the
time they provide applicants with the application materials. This
notice and the Department's oversight of the development of the
procedures for measuring substantial compliance will ensure that
agencies and persons are informed about the procedures before seeking
accreditation or approval, and that the procedures reflect the
objectives of the Convention and the IAA.
2. Comment: Several commenters do not agree with the use of a
substantial compliance system. They request that the regulations
require complete compliance with all the standards of subpart F. Many
other commenters express their support for a substantial compliance
model. Some are concerned that the accrediting entities will require
compliance with standards not contained in subpart F.
Response: There has been considerable disagreement in the adoption
community about which of the standards in subpart F--if any--should be
made absolute. The preamble to the proposed rule discussed this issue
extensively. (See 68 FR 54080). The IAA plainly contemplates a
substantial compliance standard, however, as section 204(b)(1) of the
IAA requires the Department to suspend or cancel the accreditation or
approval of an agency or person who is ``substantially out of
compliance with applicable requirements,'' if the accrediting entity
has not taken appropriate enforcement action. In addition, the
standards in Part F address a wide range of ethical and social work and
adoption issues and reflect practices that inherently are evolving.
One-time failures to comply with a particular standard, though
unfortunate, should not necessarily lead to the imposition of severe
types of adverse action such as cancellation of accreditation or
approval. The Department considers it essential to give sufficient
discretion to accrediting entities, which will be selected based on
their expertise, to decide when noncompliance warrants adverse action,
and which kind of adverse action to take.
The Department recognizes that adherence to certain individual
standards is critical to protecting children and families and
comporting with the requirements of the Convention and the IAA.
Therefore, as noted in the response to comment 1 for this section, the
accrediting entity is required to develop and use a method for
measuring substantial compliance which includes assigning values and
weighting each individual standard, or element of a standard,
reflecting the relative importance of each standard to compliance with
the Convention and IAA. The accrediting entity may not use standards
other than those contained in this rule.
3. Comment: Several commenters believe that the accreditation
process described in Sec. 96.27 focuses too heavily on document
review. They would like the regulations to emphasize analysis of an
agency's or person's past performance, including successful adoptions,
disruptions and dissolutions, complaints, and pending or resolved
lawsuits, as the primary criteria for accreditation. Some commenters
suggest that the primary basis of evaluation for accreditation should
be interviews of clients chosen on a random basis, as well as
interviews with former employees, agents, and consultants. One
commenter suggests that a provider should be required to waive any
confidentiality requirements contained in settlements of lawsuits. Some
commenters would like agencies to give accrediting entities a list of
all their clients and former clients to aid in the evaluation.
Response: We believe the overall process outlined in the rule for
evaluating agencies and persons and determining substantial compliance
is consistent with the IAA's accreditation model. It is worth noting
that accrediting entities will not initially be able to monitor actual
performance of agencies in completing Convention adoptions because the
Convention will not enter into force for the United States until after
some agencies and persons have been accredited and approved. Therefore,
during the initial accreditation process a certain amount of document
review is necessary to measure an agency's or person's capacity to meet
the standards once the Convention is in force. The rule takes this into
account in Sec. 96.27(b). The rule also requires, however, in Sec.
96.24(b) that accrediting entities conduct site visits for each agency
or person seeking accreditation or approval. As provided in Sec.
96.24(c), these site visits may include ``interviews with birth
parents, adoptive parent(s), prospective adoptive parent(s), and adult
adoptee(s) served by the agency or person, and interviews with other
individuals knowledgeable about the agency's or person's provision of
adoption services.'' Thus, we do not agree that the evaluation process
focuses too much on document review.
In addition, Sec. 96.24(b) has been revised to require
consideration of complaints received under subpart J; Sec. 96.27(b)
requires that past performance generally be considered in determining
if an agency or person may retain or renew its accreditation or
approval to complete Convention adoptions; and other standards in
subpart F, in particular Sec. 96.35, require the disclosure to the
accrediting entity of much of the information these commenters wish to
have the accrediting entity consider. Please see the discussion of
comments on Sec. 96.35's disclosure provisions, including disclosures
related to lawsuits, complaints, and disciplinary proceedings for
further explanation.
4. Comment: A State licensing authority commends the Department for
explaining, in Sec. 96.27(g), that the accreditation standards under
these regulations do not eliminate the need for an agency or person to
comply fully with the laws of the State in which it operates. The
commenter suggests two modifications to enhance a close working
relationship between accrediting entities and State licensing
authorities that are not accrediting entities. First, it recommends
that the Department require the accrediting entities to consult with
State licensing authorities to verify that applicants for accreditation
or renewal of accreditation are in compliance with State licensing
requirements. Secondly, it recommends that the Department specifically
allow accrediting entities and State licensing authorities to share
information with each other pursuant to the access to information
provisions of Sec. 96.26.
Response: The Department encourages open communication between
accrediting entities and State licensing authorities and has revised
the language of Sec. 96.26(b) to clarify that sharing information with
an appropriate public domestic authority, such as a State licensing
authority, is authorized.
[[Page 8086]]
Subpart F--Standards for Convention Accreditation and Approval
Subpart F is organized in the same way as in the proposed rule with
informal ``divisions'' after the first section, Sec. 96.29 (Scope).
The Licensing and Corporate Governance division includes Sec. 96.30
(State licensing); Sec. 96.31 (Corporate structure); and Sec. 96.32
(Internal structure and oversight). The Financial and Risk Management
division includes Sec. 96.33 (Budget, audit, insurance, and risk
assessment requirements) and Sec. 96.34 (Compensation). The Ethical
Practices and Responsibilities division includes Sec. 96.35
(Suitability of agencies and persons to provide adoption services
consistent with the Convention) and Sec. 96.36 (Prohibition on child
buying). The Professional Qualifications and Training for Employees
division includes Sec. 96.37 (Education and experience requirements
for social service personnel) and Sec. 96.38 (Training requirements
for social service personnel). The Information Disclosure, Fee
Practices and Quality Control Policies and Practices division includes
Sec. 96.39 (Information disclosure and quality control practices) and
Sec. 96.40 (Fee policies and procedures). The division on Responding
to Complaints and Records and Reports Management includes Sec. 96.41
(Procedures for responding to complaints and improving service
delivery); Sec. 96.42 (Retention, preservation and disclosure of
adoption records); and Sec. 96.43 (Case tracking, data management, and
reporting). The Service Planning and Delivery division includes Sec.
96.44 (Acting as a primary provider); Sec. 96.45 (Using supervised
providers in the United States); and Sec. 96.46 (Using providers in
Convention countries). The division on Standards for Cases in Which a
Child Is Immigrating to the United States (Incoming Cases) includes
Sec. 96.47 (Preparation of home studies in incoming cases); Sec.
96.48 (Preparation and training of prospective adoptive parent(s) in
incoming cases); Sec. 96.49 (Provision of medical and social
information in incoming cases); Sec. 96.50 (Placement and post-
placement monitoring until final adoption in incoming cases); Sec.
96.51 (Post-adoption services in incoming cases); and Sec. 96.52
(Performance of Hague Convention communication and coordination
functions in incoming cases). The division on Standards for Cases in
Which a Child Is Emigrating From the United States (Outgoing Cases)
includes Sec. 96.53 (Background studies on the child and consents in
outgoing cases); Sec. 96.54 (Placement standards in outgoing cases);
Sec. 96.55 (Performance of Hague Convention communication and
coordination functions in outgoing cases); and Sec. 96.56 (Reserved).
The Department has made a number of changes to subpart F in
response to public comments. In particular, as discussed at section
III, subsection B of the preamble, revisions have been made to Sec.
96.33's insurance standard, to Sec. 96.37 on social service personnel
education and experience, to Sec. 96.39's provision on waivers of
liability, and to the provisions relating to primary provider
responsibility for supervised providers in the United States and for
foreign providers in Convention countries Sec. Sec. 96.45-46. Comments
on these provisions, and changes to a number of others, such as
Sec. Sec. 96.32, 96.34, 96.35, 96.38-44, and 96.47-54, are discussed
below. We also changed the sections on preparation of home studies in
incoming cases (Sec. 96.47) and child background studies in outgoing
cases (Sec. 96.53) to clarify that, under the IAA, a supervised
provider may prepare a home study or child background study.
Licensing and Corporate Governance
Section 96.30--State Licensing
1. Comment: Several commenters recommend revising Sec. 96.30(c) to
state that agencies or persons work ``in cooperation with'' instead of
``through'' other agencies and persons licensed in different States.
They believe this will clarify the fact that agencies are not limited
to working only with families in the State(s) in which the agency is
licensed. Conversely, a commenter requests that the regulations state
that, once an agency is accredited to provide Convention adoption
services, it is authorized to provide those services in any U.S. State
where it is also licensed under State law. Another commenter believes
that a different license should be involved in intercountry placements
and that being licensed to place children domestically is not
sufficient for placing internationally.
Response: We are not making any changes in response to these
comments. The Department recognizes that intercountry adoptions in the
United States frequently bring together an agency licensed in one State
and a family located in a different State. The Convention and the IAA
do not change any applicable State requirements that an agency be
licensed or otherwise authorized in the State to provide services in
the State. Under the IAA and Sec. 96.30(c), to provide adoption
services in a Convention case, an agency or person must be: (1)
Licensed or otherwise authorized in each State in which it is providing
adoption services; or (2) if it wishes to work in a State in which it
is not licensed, work through an agency or person who is licensed or
authorized and who is acting as an exempted or supervised provider, or
through a public domestic authority of that State. Thus, an agency not
licensed in a particular State may provide services to a client in that
State, through another agency or person that is licensed or authorized
to provide services in that State and additionally is functioning as a
supervised provider or an exempted provider or through a public
domestic authority.
These regulations are consistent with the IAA, which states
explicitly, in section 503(a), that the IAA is not meant to preempt
State law unless a provision of State law is inconsistent with the
Convention or the IAA.
It will continue to be up to each State to determine if
requirements to be licensed to provide adoption services in
intercountry cases should be different from requirements to provide
services in domestic adoption cases. Regardless of how an individual
State resolves this issue, however, an agency or person involved in
intercountry adoption services under the Convention will need to comply
with these regulations.
2. Comment: Two commenters believe that it is essential that
agencies and persons be permitted to work with other agencies and
persons licensed in different States. They ask that accrediting
entities pay close attention to the activity under such relationships,
however, so that Sec. 96.30 is followed properly.
Response: In deference to the important role that cross-State
relationships and networks play in matching children from many
different countries of origin with prospective adoptive parent(s)
throughout the United States, the regulations allow such relationships
to continue. We believe that the regulations also allow appropriate
oversight of these relationships, so that no change is needed in
response to this comment. The regulations, in particular subpart C,
provide for a ``primary provider'' to be responsible for ensuring that
all of the adoption services, as defined in Sec. 96.2, are provided in
a Convention case. The primary provider assumes responsibility for its
use of supervised providers under the provisions of Sec. Sec. 96.45
and 96.46, which includes ensuring that those providers are in
compliance with applicable State licensing and regulatory requirements
in all jurisdictions in which they provide adoption services. Failure
to do so may
[[Page 8087]]
be grounds for the accrediting entity to take adverse action against
the primary provider, and may jeopardize the primary provider's
accreditation or approval status. The Department believes that this
system will ensure proper monitoring of supervised providers by primary
providers.
Section 96.31--Corporate Structure
1. Comment: Several commenters oppose allowing agencies that
qualify for nonprofit tax status under State law alone from receiving
accreditation. They suggest that only agencies that have qualified for
nonprofit tax status under Sec. 501(c)(3) of the Internal Revenue Code
should be permitted to become an accredited agency. One commenter
requests that the Department bear in mind that several countries
already have regulations that would explicitly require U.S. agencies to
have nonprofit status and/or tax-exempt status under Sec. 501(c)(3) of
the U.S. Tax Code.
Response: We left Sec. 96.31(a) of the proposed rule unchanged in
the final rule. For accreditation purposes, agencies must have
nonprofit status under the laws of any State or must qualify for
nonprofit tax treatment under Sec. 501(c)(3) of the Internal Revenue
Code. The Department does not believe there is sufficient justification
to increase the regulatory burden of the rule by requiring all agencies
to obtain nonprofit status under Sec. 501(c)(3) and under State law.
Nothing in this rule prohibits agencies from qualifying as a nonprofit
under both Federal and State law, if they so choose, and an agency or
person will of course have to obtain Sec. 501(c)(3) status if so
required by a particular Convention country in which the agency or
person wishes to operate.
2. Comment: A commenter recommends that attorneys and other
individual practitioners be required to be licensed to provide adoption
services under State law, rather than only authorized to provide
adoption services, in order to become approved persons.
Response: The Department declines to change the rule. IAA section
203(b)(1)(G) requires only that nonprofit agencies must be licensed to
provide adoption services in at least one State in order to become
accredited. Section 203(b)(2) of the IAA does not apply the requirement
to have a State license to persons (for-profit agencies and
individuals) that seek to become approved. We note that Sec. 96.30(a)
requires that persons be authorized by State law to provide adoption
services in at least one State, which may have the practical effect of
requiring persons to become licensed, depending on the laws of the
State in question.
Section 96.32--Internal Structure and Oversight
1. Comment: Numerous commenters request that agencies and persons
be required to include adult adoptees on their boards of directors or
other similar governing bodies to provide input on the needs and
concerns of the intercountry adoption community.
Response: The Department agrees that the standard should encourage
accredited agencies and approved persons to have boards of directors
that include individuals who understand the concerns of adoptees and
other individuals involved in adoptions. Therefore, the Department has
amended Sec. 96.32(b) to add a standard that agencies and persons have
a board of directors or a similar governing body that, among other
things, includes one or more individuals with experience in adoption,
including, but not limited to, adoptees, birth parents, prospective
adoptive parent(s), and adoptive parents. Articles 11 and 22 of the
Convention expressly recognize the importance of having agencies and
persons directed and staffed by persons qualified by their ethical
standards and by training or experience. We believe that adding this
flexible standard is consistent with these articles, and that there is
no reason to limit the standard to adoptees.
2. Comment: A few commenters emphasize that approved persons should
have the same education, adoption service experience, and management
credentials that the regulations require of the chief executive officer
(CEO) of an agency.
Response: Individual approved persons will need to oversee any
supervised providers and ensure effective use of resources and
coordinated delivery of services. The Department therefore agrees that
it is important that they have education, adoption service experience,
and management expertise similar to that which we expect of the CEO of
an agency. Therefore, the Department has changed Sec. 96.32(a) to
apply to situations where the person is an individual.
3. Comment: Several commenters suggest that a new standard be added
to Sec. 96.32, which would read, ``The agency or person has in place
appropriate procedures and standards, pursuant to Sec. Sec. 96.45 and
96.46, for due diligence on selection, monitoring, and oversight of
supervised providers.'' Others are concerned that accrediting entities
have sufficient information to check on an agency's or person's past
practices.
Response: The Department agrees that one of the critical functions
that accredited agencies and approved persons will serve is to provide
oversight to the supervised providers with whom they work. Therefore,
in response to these comments, the Department has added a new standard
to the final rule, as Sec. 96.32(d), which reads: ``The agency or
person has in place procedures and standards, pursuant to Sec. Sec.
96.45 and 96.46, for the selection, monitoring, and oversight of
supervised providers.''
We have also added a new standard as Sec. 96.32(e). Section
96.32(e) requires the agency or person to disclose to the accrediting
entity any other names by which the agency or person is or has been
known, under its current or any former form of organization, and
addresses, and phone numbers used when such names were used. It also
requires the agency or person to disclose the name, address, and phone
number of current directors, managers, and employees, and, if any such
individual previously served with another provider of adoption
services, the name, address, and phone number of the provider of which
they were a director, manager, or employee. Additionally, the rule now
requires that the agency or person must provide information on any
entity that it currently uses or intends to use as a supervised
provider. These modifications to Sec. 96.32(e) will help to ensure
that an accrediting entity may investigate an agency's or person's past
and present practices, the past and present practices of their
directors, managers, and employees, and their selection and oversight
of supervised providers.
Financial and Risk Management
Section 96.33--Budget, Audit, Insurance, and Risk Assessment
Requirements
1. Comment: Commenters request clarification of the budget and
audit requirements. Some commenters state that annual independent
audits are too expensive and burdensome.
Response: In response to these comments, the Department has revised
Sec. 96.33(a) and Sec. 96.33(b). Subsection (a) requires that the
agency or person operates under a budget that discloses all
remuneration, regardless of its form, paid to the agency's or person's
board of directors, managers, employees, and supervised providers.
Agencies and persons should find subsection (b) less burdensome than
the proposed rule, in that it now requires annual internal budget
review and oversight and independent audits only every four
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years. The yearly internal financial review reports must be submitted
for inspection by the accrediting entity. We believe these provisions
strike a balance between ensuring financial soundness and transparency
and reducing the costs of annual external audits.
2. Comment: Numerous commenters request that the phrase
``independent professional assessment of risks'' in Sec. 96.33(g), on
insurance coverage, be more clearly defined. Commenters believe that an
agency's or person's management, insurance agent, financial, or legal
counsel should be allowed to conduct a risk assessment review. Several
commenters are concerned that requiring a review by an independent risk
assessment firm will cause undue financial hardship for small agencies
and will raise the costs of accreditation and approval. As well, a
commenter believes that agencies or persons should not be required to
include in a risk assessment an evaluation of the risks of using
supervised providers in the United States and abroad. Other commenters
believe that an agency or person should be allowed to determine its own
level of risk and purchase the amount of insurance that it believes is
necessary.
Response: The Department has changed the risk assessment standards
in response to concerns that the proposed rule was too burdensome. The
final rule standard provides for the agency or person to conduct a risk
assessment, but no longer provides that the assessment be conducted by
an independent professional. An agency's or person's management,
insurance agent, financial, or legal counsel may conduct the
assessment. Additionally, the assessment must include a review of
information on the availability of insurance coverage for Convention-
related activities. The agency or person must use the assessment to
meet the requirements of Sec. 96.33(h), which requires an agency or
person to maintain professional liability insurance in amounts
reasonably related to its exposure to risk, and to evaluate what other
types of insurance to carry. To conform to changes in Sec. Sec. 96.45
and 96.46 (removing requirements for assumption of liability for
supervised providers) and Sec. 96.39(d) (allowing use of waivers), we
have deleted the requirement that the risk assessment include an
evaluation of the risks of providing services directly to clients who
do not sign blanket waivers of liability and the risks of working with
supervised providers. The individual conducting the risk assessment
will now have discretion to determine the elements to complete the risk
assessment, including any risks arising from working with supervised
providers or requiring clients to sign limited and specific waivers.
The Department recognizes that requiring risk assessments is a
change from the current practice of many adoption service providers.
The Department is requiring a risk assessment so that the agency or
person can use it to determine the appropriate amount of insurance
coverage needed to protect families working with accredited agencies
and approved persons as well as for the protection of the agencies and
persons themselves.
3. Comment: Several commenters support the standard on professional
liability insurance coverage, but are extremely concerned about the
lack of available insurance. Commenters state that insurance coverage
options are limited, and coverage can be unaffordable for many agencies
or persons. Commenters request that the Department explore alternative
means for agencies and persons to obtain insurance coverage. Commenters
requested that the Department consider the following suggestions: (1)
Agencies and persons self-insuring through the use of a bond account
held by a public authority; (2) agencies and persons self-insuring
through the purchase of a Certificate of Deposit in the name of the
agency and a public authority; (3) establishment by the Department of a
federally backed insurance program; (4) establishment of a Federal
insurance commission; (5) a Hague insurance commission established to
offer insurance coverage at a reasonable rate; and/or (6) an insurance
waiver program for agencies and persons who show that they are unable
to secure insurance coverage despite attempts to do so.
Response: The IAA requires a standard on insurance coverage. The
Department understands the concern of many commenters about the
availability and affordability of professional liability insurance
coverage for adoption service providers, but anticipates that such
coverage will become available and affordable as the market responds to
the demand the standard will create. These suggestions for developing
alternatives to insurance coverage by existing market mechanisms in any
event far exceed the authority granted to the Department by the IAA.
4. Comment: Several commenters suggest that the Department request
that the insurance industry analyze underwriting intercountry adoption
insurance policies to parents to increase the likelihood that insurers
may be more willing to provide an agency or person insurance coverage
as well. Commenters suggest that the regulations allow prospective
adoptive families and agencies and persons to enter into binding
arbitration with capped awards in order to limit litigation and thereby
encourage insurers to underwrite liability insurance for agencies and
persons.
Response: The IAA does not give the Department the authority to
regulate the insurance industry. Nor does the Department believe it can
or should require parents to enter into binding arbitration agreements
with agencies or persons. Nothing in the IAA or these regulations would
prevent prospective adoptive parent(s) and agencies or persons from
agreeing to use binding arbitration as opposed to litigation in the
event of a problem, however. Thus it is possible that practices will
develop that will respond to some of these suggestions.
5. Comment: A commenter recommends that the regulations provide
that, if a company provides insurance policies to any nonprofit
organizations, it must provide insurance to adoption placement
agencies. This commenter perceives that insurance companies
discriminate against adoption placement agencies. A commenter requests
that insurers be required to consider the differences in the services
offered by agencies before determining coverage, such as whether the
agencies place orphans or whether they place children whose birth
parents consent to an adoption. The commenter also suggests that there
should be federally-mandated guidelines to govern fee increases by
insurance companies.
Response: As noted, the IAA does not give the Department authority
to regulate the insurance industry, including the types of coverage
insurance companies must provide or the fees charged for insurance.
6. Comment: Many commenters believe that the requirement in Sec.
96.33(g) to maintain a minimum of $1,000,000 per occurrence in
insurance is excessive and suggest a lower amount or that an amount not
be specified in this rule. Commenters are concerned in particular that
the insurance requirements will increase the costs of adoption. Many
commenters point out that professional liability insurance is very
difficult to obtain; some say that insurance companies commonly refuse
coverage to adoption service providers, particularly if the provider
has ever been party to a lawsuit, and others state that their coverage
was cancelled after just one insurance claim. Those that do have
coverage find their insurance premiums to be expensive. Another
commenter, however, maintains that
[[Page 8089]]
liability insurance coverage is readily available to qualified agencies
and persons. Some commenters also agree with the $1,000,000 per
occurrence liability insurance requirement and believe the requirement
is essential for the protection of adoptive families. One commenter
suggests requiring an umbrella insurance policy instead of an aggregate
limits policy.
Response: Section 203(b)(1)(E) of the IAA requires that a standard
be in force that provides for ``adequate liability insurance for
professional negligence and any other insurance that the Secretary
considers appropriate.'' Therefore, the issue is not whether to have a
standard requiring professional negligence insurance (also referred to
as professional liability insurance), but what amount is ``adequate''
and whether additional insurance requirements are ``appropriate.'' For
this reason, the Department is maintaining an insurance standard.
The Department has revised the standard, however, to require that
professional liability insurance be maintained in amounts reasonably
related to exposure to risk, but in no case in an amount less than
$1,000,000 in the ``aggregate.'' As discussed at section III,
subsection B.1 of the preamble, the Department made this decision after
reviewing the range of comments on this issue and engaging a consultant
to gather additional information on available insurance coverage and
industry practices in underwriting policies. In summary, we now believe
that approving a $1 million aggregate standard instead of $1 million
per occurrence is adequate and appropriate. Setting the standard to
require a minimum of $1 million in the ``aggregate'' establishes an
outer limit on total coverage and not a per incident or claim limit.
Setting the standard only for coverage in the aggregate potentially
provides more flexibility to both agencies and persons seeking
insurance and the underwriting company to set lower ``per occurrence''
limits within the $1 million aggregate coverage, should the market
respond by offering policies tailored to the Convention standard.
Setting the amount of coverage required in the aggregate at $1 million,
while still requiring that coverage be related to actual risk, also
strikes a balance between the burden the insurance standard imposes on
agencies and persons seeking to provide Convention adoption services
and protecting the interests of birth parents, prospective adoptive
parent(s), and children.
The final rule standard in Sec. 96.33(g) continues to require the
agency or person to use a risk assessment to determine the actual
amount of professional liability insurance to be maintained under Sec.
96.33(h)--that is, to determine if more coverage than the minimum is
appropriate.
7. Comment: Some commenters are concerned that specifying an
insurance amount will encourage lawsuits for that amount or greater.
Another commenter thinks that the insurance requirement will keep
agencies and persons from placing special needs children due to fear of
increased litigation.
Response: As noted, the Department cannot avoid drafting a
professional liability insurance standard, because the IAA explicitly
requires agencies and persons to have ``adequate'' professional
liability insurance. Requiring a certain amount of insurance coverage
in the aggregate, rather than per occurrence, should reduce the
likelihood of increased litigation, since plaintiffs will not consider
that they can necessarily receive the total amount. The Department does
not believe that the insurance requirement will discourage agencies and
persons from placing special needs children. If an agency or person is
in compliance with the disclosure requirements of Sec. 96.49, then it
will disclose to prospective adoptive parent(s) any known special needs
of the child, which should help decrease the number of claims against
agencies or persons.
8. Comment: Commenters are concerned about the cash reserve
provision in Sec. 96.33(e). Commenters also seek insertion of the word
``charitable'' to Sec. 96.33(f).
Response: We have reduced the period of time for which the agency
or person must maintain on average financial resources to meet its
operating expenses to two months. We also changed Sec. 96.33(e) to
allow assets, as well as cash reserves and other financial resources,
to be taken into account in determining whether the agency is
maintaining sufficient financial resources. These changes are meant to
reduce the burden that this standard imposes on agencies and persons,
while still requiring sound financial practices. We have also amended
the standard to require the agency or person to take into account not
only its projected volume of cases, but also its size, scope, and
financial commitments.
We have also inserted the word ``charitable'' before donation in
Sec. 96.33(f), as we agree that only charitable donations should be
accepted under the standard.
9. Comment: Some commenters, as noted in other subparts, were
concerned about the case transfer procedures, and the respective roles
of accrediting entities and agencies and persons in the transfer of
cases.
Response: As discussed in detail in the responses to comments on
Sec. Sec. 96.7 (above), 96.77 (below), and 96.87 (below), we have
modified a number of provisions in the rule relevant to Convention case
transfers in the event that an agency or person is no longer providing
services in Convention adoption cases. Our modifications include adding
a standard in Sec. 96.33(e) to require that an agency or person must
have a plan in place to transfer Convention cases if it ceases to
provide or is no longer permitted to provide adoption services in
Convention cases. The plan must include provisions for organized
closure and reimbursement to clients of funds paid for services not
rendered.
Section 96.34--Compensation
1. Comment: A commenter suggests that it is standard practice to
pay incentive fees to individuals who refer prospective adoptive
parent(s) and questions why commissions, incentives, and contingency
fees cannot be paid to a person providing a referral.
Response: Section 96.34(a), which is limited to individuals
providing intercountry adoption services, does not directly deal with
the issue of clients who are paid incentives for referring other
potential clients, such as prospective adoptive parent(s), to an agency
or person. This practice must conform, however, to the general
principle that fees may not be paid if they are made contingent on
placing or locating a child for an adoptive placement.
The Convention directs public foreign authorities and public
domestic authorities to prevent improper financial gain in connection
with an intercountry adoption. Further, section 203(b)(1)(A)(iv) of the
IAA specifically bars agencies and persons from retaining personnel on
a ``contingent fee basis.'' Generally speaking, a fee is contingent if
it is only paid if an adoption is completed. The standard prohibits
contingency fees consistent with the IAA statutory mandate. We are
maintaining the prohibition in Sec. 96.34(a), and have clarified that
the standard prohibits contingency fees for each child ``located'' for
an adoptive placement, in addition to contingency fees for each child
``placed'' for adoption.
2. Comment: Commenters who would like the financial aspects of the
adoption process to be more transparent suggest that agencies or
persons be required to account for all revenues and that any
[[Page 8090]]
payments made to third-party vendors who are related to a staff member
of an agency or person should be required to be reported along with
information stating the amount of payment and the type of service
rendered. Many other commenters support the proposed compensation
regulations stating that they provide reasonable guidance to agencies
on how to structure compensation for intercountry adoptions.
Response: The Department has maintained the general structure of
Sec. 96.34 and has added Sec. 96.34(f), which requires that agencies
and persons identify any third-party vendors to whom clients are
referred for non-adoption services. The agency or person must disclose
any corporate, financial, or familial relationship with such vendor. We
have also made a related change to Sec. 96.40(c)(1), setting a
standard that requires disclosure of all third-party fees to
prospective adoptive parent(s). For more information on the reasons for
this modification, see the responses to comments for Sec. 96.40(c).
3. Comment: Commenters seek clarification as to whether or not
fees-for-services constitute incentive fees. They recommend that
employees and supervised providers be paid an hourly rate or salary for
services actually rendered, not on a contingency fee basis. Paying
employees or supervised providers a regular salary minimizes the
incentive for a person to make more referrals to earn higher fees.
Response: Fees for adoption services do not constitute incentive
fees. We have clarified in Sec. 96.34(a), however, that the standard
disallows any contingency fee arrangements related to locating or
placing a child for adoption. For further information, see the response
to comment 1 for Sec. 96.34.
4. Comment: Commenters question what or who will determine whether
the fees, wages, and salaries paid to the directors, officers, and
employees of an agency or person are ``unreasonably high.'' One
commenter feels that a free enterprise system should determine fees,
wages, and salaries. Other commenters recommend that fees, wages, and
salaries be evaluated in light of the country's economy and be
commensurate with the cost of living in the country of origin.
Response: The concept of ``reasonableness'' does not lend itself to
bright line rules, but rather requires an assessment in light of a
variety of relevant factors. We have crafted standards in Sec.
96.34(d) and (e) that identify the factors the Department believes
should be considered in determining if fees, wages, or salaries paid
are unreasonably high in relation to services rendered. We have made
one change to guide this analysis, requiring that the compensation be
judged by taking into account the country in which the adoption
services were provided and the relevant norms for compensation within
that country, to the extent known to the accrediting entity. We have
also added supervised providers to the list of those whose compensation
must meet the reasonableness standard of Sec. 96.34(d). We believe
this approach, which avoids inappropriately setting caps or range
limits on salaries and wages, will be workable, particularly because
accrediting entities will often have access to comparable data on
agencies and persons under their authority.
Ethical Practices and Responsibilities
Section 96.35--Suitability of Agencies and Persons To Provide Adoption
Services Consistent With the Convention
1. Comment: To ensure that the referral process is based on fair,
legal, and objective criteria, one commenter requests that the
Department monitor the ethical practices of those involved in the
referral process.
Response: It is difficult to police unethical practices in
referrals of children eligible for adoption from countries of origin.
Nevertheless, Sec. 96.46 sets out standards that an agency or person
must follow in using supervised providers in other countries, including
by ensuring that such foreign supervised providers do not engage in
practices inconsistent with the Convention's principles of furthering
the best interests of the child and preventing the sale, abduction,
exploitation or trafficking of children. See also the responses to
comments on Sec. 96.46.
Ultimately, however, it is the responsibility of the country of
origin's competent authorities to ascertain if Article 4 requirements
for determining if a child is eligible for adoption have been met. If
it appears that the Central Authority or public foreign authorities of
a country of origin have improperly referred a child who is not
eligible for adoption, then the two Central Authorities (country of
origin and receiving country) involved will need to resolve the
problem.
2. Comment: A commenter requests that language on ethical standards
be mandatory. The commenter also wants the Department to make the
oversight mechanisms related to specific standards more explicit. Other
commenters support the standards on suitability as written. One of
these commenters thinks that the proposed standards will help agencies
and persons uphold high ethical practices when providing adoption
services.
Response: The issue of mandatory standards is discussed in the
responses to comments on Sec. 96.27 and at section II, subsection B of
the preamble, above. The regulations include numerous ethical
standards. The extensive disclosure standards in Sec. 96.35, which
remain largely unchanged from the proposed rule, are designed to ensure
that agencies and persons are not violating any ethical standards or
any of the guiding principles of the Convention or the IAA, except that
Sec. 96.35(c) does have new language to clarify that the disclosure
requirements for agencies and person require disclosure of information
related to individual directors, officers, and employees associated
with the agency or person in any operations under a different corporate
or professional name. State licensing regulations or other State laws
also may contain mandatory ethical standards for agencies, persons, or
individuals in certain professions.
3. Comment: One commenter requests that the provisions in Sec.
96.35 include any individual working for the agency or person if such
individual is involved in any of the ``adoption services'' defined in
Sec. 96.2.
Response: Section 96.35(c) requires an agency or person (for its
current and any former names) to disclose information about its
directors, officers, and employees to the accrediting entity. (Section
96.35(d), as well, requires disclosures from persons who are individual
practitioners.) Thus, this standard already requires the disclosures
related to individuals providing adoption services requested by this
comment. Also, as noted previously, Sec. 96.32(e)(3) now requires that
the agency or person disclose the names of any entity it intends to
use, or is using, as a supervised provider.
4. Comment: Some commenters request that an agency or person be
required to disclose any instance in which it lost its license, even
for a brief period of time. Other commenters are concerned that
agencies and persons providing multiple services will be denied
accreditation or approval because their license was suspended or
permanently revoked for violations in service areas other than
intercountry adoption.
Response: The Department has changed Sec. 96.35(b)(1) to delete
the word ``permanently.'' Thus, an agency or person will need to
disclose any instances in which it lost the right to provide adoption
services for any period of time in any State or country. In
[[Page 8091]]
addition, the Department has changed Sec. 96.35(b)(5) to make it clear
that an agency or person (under its current or any former names) must
disclose to the accrediting entity information on complaints related to
the agency's or person's provision of adoption-related services filed
with any State, Federal, or foreign regulatory body of which the agency
or person was notified. A change was also made to Sec. 96.35(b)(6) to
require disclosures of government investigations, criminal or child-
abuse charges, or lawsuits related to the provision of child welfare or
adoption-related services. We have not changed the requirement that the
agency or person disclose any licensing suspensions for cause or
sanctions by oversight bodies, as we believe such information will be
valuable to the accrediting entity even if the license pertained to
another service area.
5. Comment: Some commenters recommend that the Department keep the
requirement in Sec. 96.35(b)(5) that agencies and persons disclose to
accrediting entities any disciplinary actions or written complaints,
including the basis and disposition of such complaints, for the past
ten years. Other commenters feel that the ten-year requirement is too
long and recommend three to five years. Several commenters recommend
that agencies and persons have to disclose only substantiated written
complaints or lawsuits in which the agency or person was found liable.
Commenters are also concerned that unsubstantiated accusations will
delay an agency's or person's accreditation/approval application if
``written complaint'' is not more clearly defined in Sec. 96.35(b)(5).
Other commenters are concerned that information about lawsuits will not
be disclosed because of confidentiality provisions in any settlement
agreements.
Response: We have modified Sec. 96.35(b)(5) to limit the
disclosure requirement to those written complaints filed with any State
or Federal regulatory body and of which the agency or person was
notified. The agency or person must still disclose the outcome of all
such complaints.
The Department declines to change the ten-year requirement for
disclosure of complaints in Sec. 96.35(b)(5), because we believe ten
years of information will best allow accrediting entities to make an
informed accreditation determination. We also have not changed Sec.
96.35(b)(6), notwithstanding the concern that confidentiality
provisions in settlement agreements will prevent disclosure of
information about lawsuits. We do not want agencies or persons to be
prevented from applying because another party is unwilling to modify
the disclosure provisions of a settlement agreement, and the
accrediting entity will have ample authority to determine, on a case-
by-case basis, what steps an applicant should be asked to take to
provide sufficient information about the basis and disposition of a
lawsuit, including seeking a waiver of any confidentiality provisions.
6. Comment: One commenter states that the term ``malpractice
complaint'' in proposed rule Sec. 96.35(b)(6) is a subset of ``written
complaints'' in Sec. 96.35(b)(5), while others appear to believe that
it is not a duplicative term.
Response: The Department has modified Sec. 96.35(b)(6) to delete
reference to ``malpractice complaints.'' The requirement to disclose
the basis and disposition of lawsuits related to the provision of child
welfare or adoption-related services in Sec. 96.35(b)(6) is sufficient
to cover malpractice complaints.
7. Comment: Commenters are concerned that States, as well as
agencies and persons, have not kept sufficient records of every
complaint. Commenters suggest that parents send all past complaints to
accrediting entities for review. Several commenters request that a
central registry be established to record and verify that an agency or
person is in good standing.
Response: We have revised the standard at Sec. 96.35(b)(5) to
limit the complaints that must be disclosed to written complaints over
the prior ten-year period that were filed with Federal authorities or
public domestic authorities, and of which the agency or person was
notified. This is more congruent with the disclosure requirement in
Sec. 96.35(b)(6) related to lawsuits and other investigations by
governmental authorities, and clarifies that the intent is to require
disclosure of complaints filed with regulatory authorities, such as
licensing authorities, rather than complaints made directly to the
agency or person. We believe the agencies or persons will ordinarily
have information about such significant complaints available, even for
the period before these regulations take effect.
After the initial round of accreditation/approval has been
concluded and the Convention has entered into force, the accrediting
entity will also have available to it information on complaints made
directly to the agency or person, under Sec. 96.41. This standard
requires accredited agencies and approved persons to keep written
records of complaints against them as well as the steps taken to
investigate and respond to the complaints. These written records must
be made available to the accrediting entities and the Department, upon
request.
8. Comment: One commenter suggests that agencies and persons
evaluate the moral character of their employees, associates, and
supervised providers.
Response: Section 96.35(c)(5) requires disclosure of businesses or
activities that have been or are currently carried out by individual
directors, officers, or employees of the agency or person, which are
inconsistent with the principles of the Convention. Additionally, Sec.
96.35(b)(9) requires an agency or person to disclose to the accrediting
entity their prior or current association, if any, with businesses or
activities that are inconsistent with the principles of the Convention.
The Department believes these standards provide specific guidance to
accredited agencies and approved persons on ethical adoption practices.
To the extent that the ``moral character'' of individual employees is a
separate issue, it is beyond the scope of these regulations.
9. Comment: Commenters request that background checks be conducted
on all employees of an agency or person. One commenter notes that the
proposed rule requires that some employees have background checks, and
notes that States may not be able to complete criminal background
checks and child abuse clearances for such individuals without
additional statutory authority.
Response: Section 96.35(c)(3) requires an agency or person to
disclose to the accrediting entity the results of a criminal background
check and child abuse clearance for U.S. employees of agencies or
persons who work directly with parent(s) or children, as well as for
those in senior management positions (unless such checks have been
included in the State licensing process). This requirement furthers the
IAA's mandate that the agency or person must have a sufficient number
of appropriately trained and qualified personnel.
The accrediting entity must have criminal and child abuse
background information for this subgroup of employees to assess if they
are capable of safely providing services directly to children and their
families. Broadening the group of employees subject to these background
checks would not substantially contribute to the accrediting entity's
evaluation of the agency's or person's capacity to provide adoption
services, however, and would not warrant imposing the financial burden,
administrative burden, and other complexities associated with obtaining
and considering background
[[Page 8092]]
information in the hiring process of all employees.
This regulation of course cannot in itself authorize States to
implement criminal background investigations and child abuse
clearances. The Department recognizes that, while the use of criminal
and child abuse background checks is standard in many States,
especially in the context of employees who work with children, other
States specify unique parameters and restrictions for obtaining and
using criminal background checks. In addition, criminal background
checks may invoke protections of other Federal laws, such as the Fair
Credit Reporting Act. To be clear, Sec. 96.35(c)(3) does not supersede
or supplant any other Federal or State statute or regulation that might
otherwise restrict access to or consideration of background checks. If
the State criminal background check is unavailable by operation of
State law, then the agency or person can so demonstrate.
10. Comment: One commenter requests that agencies or persons be
required to disclose whether or not they have ever operated under a
different corporate name.
Response: Both Sec. 96.35(b) and (c) now require disclosures
related to operations under a different corporate name, as does Sec.
96.32(e). The Department made these changes so that agencies and
persons could not avoid disclosing information by applying for
accreditation or approval under a different name than they formerly
used. See also responses to comment 3 on Sec. 96.32 and comment 11 on
Sec. 96.35.
11. Comment: Commenters request that an agency or person be
required to disclose any financial irregularities on the part of the
agency or person and any of its employees. Commenters recommend that an
agency's or person's previous business history be included with its
application for accreditation or approval. Commenters also request that
agencies and persons be required to disclose any current and past
business activities that are inconsistent with the principles of the
Convention.
Response: We modified the rule to require agencies and persons to
make disclosures to accrediting entities about individual directors,
officers and employees under not only their current corporate names,
but also under any former names. Additionally, Sec. 96.35(c)(2)
requires an agency or person to disclose any convictions or current
investigations for acts involving financial irregularities by
directors, officers, or employees in senior management positions. The
Department does not require such disclosure for all employees because
we believe it sufficient to focus on the acts of senior management
personnel--that is on those in a position to control and manage the
agency's or person's finances. Also, to ensure compliance with the
Convention's principles, the regulations have been changed at Sec.
96.35(c)(5) to require disclosure of businesses or activities that are
inconsistent with the principles of the Convention and that ``have been
or are currently'' carried out by individual directors, officers, or
employees of the agency or person.
12. Comment: One commenter believes that social workers, like
lawyers, should be required to provide a certificate of good standing
from their State licensing authority. If they are not in good standing,
the social worker must provide an explanation and supporting
documentation. The commenter recommends that any disciplinary action
taken against the individual should be immediately reported to the
State licensing authority and the accrediting entity.
Response: To ensure the high standards of social workers who
operate as approved persons and provide Convention adoption services,
the Department has added a standard at Sec. 96.35(d)(4) to require
social workers seeking approval to provide a certificate of good
standing or an explanation, accompanied by relevant documentation, of
why he or she is not in good standing, for every jurisdiction in which
he or she has been licensed. If an accrediting entity takes adverse
action against a social worker acting as an approved person that alters
his or her approval status, the accrediting entity must report that
adverse action to the State licensing authority, pursuant to revised
Sec. 96.77(d).
Section 96.36--Prohibition on Child Buying
1. Comment: A commenter believes that there is already a
prohibition against child buying in DHS regulations and asks the reason
for re-writing the law.
Response: The current DHS prohibition on child buying, codified at
8 CFR 204.3, applies to intercountry adoption procedures, as defined in
the INA and DHS regulations. For a standard to be effective in the
accreditation/approval context, however, it must be included in the
Department's accreditation and approval regulations, 22 CFR Part 96.
Otherwise, the standard may not be used as a basis for denying
accreditation/approval or taking adverse action. Thus, the standard in
Sec. 96.36 is not duplicative. To be consistent with the DHS
regulation, the requirements of Sec. 96.36 are generally the same as
those of 8 CFR 204.3.
2. Comment: Some commenters request that the regulations stipulate
what type of expenses can be paid, and under what circumstances, to
avoid coercive situations and to protect children and birth parents. A
commenter recommends that there be no expansion in the type of adoption
services expenses that can be covered in an individual case. Other
commenters are very concerned that the standard not include
prohibitions against certain expenses that are permitted or required by
countries of origin, to avoid precluding U.S. citizens' eligibility to
adopt in certain Convention countries.
Response: The Department believes that these concerns are already
addressed in the rule, so that no revision is required. First, the
standard in Sec. 96.36(a) clearly prohibits agencies and persons from
``giving money or other consideration, directly or indirectly, to a
child's parent(s), other individual(s), or an entity as payment for the
child or as an inducement to release the child.'' This means that, if
the intent of any payment is to buy a child or to obtain consents for
adoption, then the agency or person has violated this standard. This
standard, derived from the current, longstanding DHS regulations at 8
CFR 204.3, protects birth parents, children, and adoptive parents.
Regardless of how adoption services fees are described, characterized,
or classified, if the fee is remitted as payment for the child, or as
an inducement to release the child, then the standard is violated and
appropriate action may be taken against an agency or person. The
standard takes into account that the country of origin's adoption laws
and procedures, not the Department's regulations on U.S. adoption
service providers, determine what type of expenses, such as the care of
the child or contribution for child protection services, must be
covered as part of the adoption services fees. The Convention country
of the child's origin has the authority to determine allowable adoption
expenses in that country as long as the expenses are consistent with
the Convention requirements of Article 4 (consents may not be induced
by payment or compensation of any kind) and other requirements are
followed. In its role as Central Authority, the Department can,
however, communicate any concerns about a country of origin's laws and
provisions for allowable adoption services expenses.
Finally, to address the concerns of commenters who believe the
broad prohibition against child-buying could
[[Page 8093]]
be interpreted by accrediting entities to exclude certain types of
fees, such as the charitable contribution required in China, the
standard highlights that, if permitted or required by the child's
country of origin, reasonable payments for the provision of child
welfare and child protection services may be made. The Convention and
the IAA do not prohibit contributions to support family and child
protection services in Convention countries. If the contribution is not
intended to induce an individual to place a child for adoption, it is
not inconsistent with these accreditation/approval standards.
Therefore, we are not prohibiting a required contribution to an
orphanage or State welfare organization in a child's Convention
country. In Sec. 96.40(b)(6), however, we do require that the client
receive an explanation of the intended use of the contribution and the
manner in which the transaction will be recorded and accounted for.
Overall, we believe that the standard is responsive to the significant
concerns about having the flexibility to take account of Convention
country practices while upholding the basic principle against payments
for a child.
3. Comment: Several commenters believe that setting fee limits for
adoption services is the only way to prohibit child buying.
Response: Please see Sec. 96.34(a) and (d) and the responses to
comments on these sections, above. Although we understand and share the
commenters' concerns regarding fee limits, this rule does not set fee
caps for adoption services and the Department has no authority under
the IAA to set fees for adoption services. Setting caps would be
impractical and difficult to enforce, especially if the expectation was
that the Department would somehow make countries of origin conform to
the Department's fee structure. We would be unable to set fee caps that
would take into account all of the variables in the various countries
that are involved in Convention adoptions, not to mention the
fluctuations in exchange rates and currency values. We do agree,
however, that the services the fees relate to should be readily
transparent, provided to clients, and subject to accrediting entity
oversight. Thus, we have included standards in Sec. 96.40 that require
agencies and persons to provide prospective adoptive parent(s) with
extensive information on fees and expenses related to the adoption.
4. Comment: Several parents wish to ensure that any agency that
gives money or other consideration as payment for a child will lose its
State license to be an adoption agency.
Response: States, not the Federal government, license agencies.
Because State law governs licensing issues, we do not have the
authority to revoke State licenses. To be responsive to the concerns
behind this comment, however, we have modified the standard in Sec.
96.77(d) to make it clear that an accrediting entity must notify the
State licensing authority of the agency or person in question if the
accrediting entity takes adverse action that impacts the accreditation
or approval status of the agency or person.
5. Comment: One commenter requests that birth parents be made aware
of how to pursue complaints.
Response: Under Sec. 96.41(a) agencies and persons must provide
contact information for the Complaint Registry to their clients,
including birth parents in cases of children emigrating from the United
States to a Convention country. Section 96.41(b) also requires agencies
and persons to permit any birthparent to lodge complaints about
adoption services.
In cases of children immigrating to the United States, the child's
Convention country should address birthparent complaints about
violations of the Convention. Once a complaint has been lodged with the
child's Convention Country, the authorities of that country have the
responsibility to investigate the matter and to ensure compliance with
the Convention. If the complaint involves a U.S. agency or person, the
Central Authority may communicate the complaint directly to the
Department, to the Complaint Registry or to the accrediting entity
overseeing the agency or person at issue.
6. Comment: One commenter requests that all parties involved in an
adoption proceeding sign a sworn statement stating how much
compensation they received for adoption services as a prerequisite to
approval of a petition on behalf of the adopted child to enter the
United States. The commenter believes this statement should include a
declaration that the parties have not paid any illegal sum to officials
or made any other illegal payments.
Response: We are making no change in response to this comment. The
concern expressed may be addressed, in part, by the fee transparency
provisions of the rule, but these regulations governing the
accreditation/approval of adoption service providers are not an
appropriate vehicle to address the conduct of parents or impose
additional requirements on the DHS petition process.
7. Comment: One commenter states that it is critical to have
defining criteria that will determine what constitutes ``reasonable''
payment for services in Sec. 96.36. Another commenter wants no change
in the language defining ``reasonable payments for activities'' because
it provides an appropriate level of specification.
Response: The Department has not changed the language in Sec.
96.36, setting the standard that payments for necessary activities
related to adoption be reasonable, because it mirrors the principles in
the Convention and the IAA.
8. Comment: One commenter suggests the creation of a central
organizing authority that would verify relinquishments before a child
is placed in an adoption-related orphanage.
Response: This suggestion is beyond the scope of these regulations
on accreditation/approval. Pursuant to Article 4 of the Convention, the
competent authority in the child's Convention country (depending upon
the country of origin, this may be the Central Authority, a court, or
other government authority) has the obligation to ensure that consents
to an adoption have been given freely and without inducement or
compensation of any kind.
9. Comment: Two commenters request that the agency or person ensure
that employees and agents are aware of the prohibitions of the Foreign
Corrupt Practices Act (FCPA) as enumerated at 15 U.S.C. 78-dd. They
believe the FCPA has been underutilized and should be employed more
often.
Response: The FCPA is an anti-bribery statute that agencies and
persons already must comply with regardless of these regulations. The
Department of Justice is responsible for all criminal enforcement of
the FCPA and shares authority over civil enforcement with the
Securities and Exchange Commission. We note in response to this comment
that, under Sec. 96.72, an accrediting entity must refer to the
Attorney General or other law enforcement authorities any substantiated
complaints that involve conduct that is in violation of Federal law, an
obligation that encompasses the FCPA. We have not added a specific
reference to the FCPA in the standards because the standards similarly
require agencies and persons to comply with all relevant State and
Federal law, again encompassing the FCPA. We note, as well, that the
standards on compensation (Sec. 96.34) and prohibiting child buying
(Sec. 96.36) should help prevent agencies and persons from engaging in
behavior that might trigger the FCPA.
10. Comment: Several commenters are concerned that the current
regulations
[[Page 8094]]
provide no complaint or investigative process for handling allegations
of abusive practices. They request that monitoring and enforcement
procedures be outlined. Commenters request that the Department
carefully consider when, how, and by whom investigations will be done
to ``prevent the abduction, sale of, or traffic in children'' and to
ensure the regulations provide the tools such investigators need to
fulfill these responsibilities.
Response: Civil monitoring and enforcement procedures are outlined
in detail in subparts J and K of these regulations. Specifically,
pursuant to Sec. 96.72, certain substantiated complaints must be
reported promptly to the Department, and, as appropriate to State
licensing authorities, the Attorney General, or other law enforcement
authorities. We share the commenters' concerns regarding conduct in the
child's country of origin; these issues are discussed in the responses
to comments on Sec. 96.46 on foreign providers, and above at section
II, subsection D and section III, subsection A.2 of the Preamble.
11. Comment: One commenter would like the regulations to place
increased responsibility on U.S. agencies and persons to work with
supervised providers in Convention countries that do not participate in
child buying.
Response: The regulations in Sec. 96.46 clearly provide that any
agency or person that works with a foreign supervised provider is
responsible for requiring that the foreign supervised provider adheres
to the standard in Sec. 96.36(a), which prohibits an agency or person
from giving money or other consideration, directly or indirectly, to a
child's parent(s), other individual(s), or entity as payment for the
child or as an inducement to release the child.
Professional Qualifications and Training for Employees
Section 96.37--Education and Experience Requirements for Social Service
Personnel
1. Comment: A commenter is concerned that requiring an agency or
person to only use employees to perform adoption-related social service
functions will create serious problems for small agencies or persons.
Small agencies and persons often hire non-employees to conduct home
studies because they do not have the resources to employ full-time
social workers.
Response: These regulations do not prohibit an agency or person
from using independent contractors instead of employees to provide
adoption services. It is critical to understand, however, that any such
individuals, regardless of whether they are called contractors, agents,
facilitators, assistants, volunteers, etc., are considered as
supervised providers if they provide adoption services, unless they
qualify as an exempted provider in the United States or perform a
service abroad qualifying for verification under Sec. 96.46(c). An
agency's use of supervised providers must adhere to the standards in
Sec. Sec. 96.45 and 96.46.
2. Comment: Some commenters request that the ``appropriate
qualifications'' in Sec. 96.37(a) be defined more specifically.
Response: We do not think a line-by-line description of credentials
for every possible job with any agency or person is necessary. We
believe that the accrediting process will permit accrediting entities
to compare personnel credentials for covered positions with industry
norms to ascertain if the standard set forth in Sec. 96.37(a) has been
met.
3. Comment: Most, though not all, commenters agree that a master's
degree in social work (MSW), or a related field, is not a necessary
qualification for home study preparers, as the proposed rule required
at Sec. 96.37(f). Suggestions for a standard on home study preparers'
education and experience ranged from requiring a bachelor's degree in
social work (or another related field) and experience with intercountry
adoption, to requiring an MSW, at least four years experience in
intercountry adoption, and country-specific training. Others requested
that the Department consider a ``grandfather'' clause in Sec.
96.37(f), like the one in Sec. 96.37(d)(3), to exempt current
practitioners from the master's degree requirement. Other commenters
believe that the proposed regulations provided adequate flexibility
because agencies or persons could hire MSWs as supervisors or other
qualified professionals with an educational background in a related
human services field.
Response: We have eliminated the master's degree requirement for
home study preparers employed by agencies and persons, because we
understand that it may be difficult to retain social workers with a
master's degree in some locations and that requiring professional
degrees for all home study preparers would substantially increase
salary costs, especially for small agencies. We have changed the
regulation so it now requires that such employees be: (1) Licensed or
authorized to conduct a home study under the laws of the State in which
they practice; (2) in compliance with INA requirements for home study
preparers in 8 CFR 204.3(b); and (3) supervised by an employee of an
accredited agency or approved person that meets the educational and
experience requirements of Sec. 96.37(d). We have also discussed this
change at section III, subsection B.2 of the preamble.
4. Comment: Other commenters were concerned that the degree
requirements in Sec. 96.37(e) for non-supervisory employees providing
adoption services which require the application of clinical skills and
judgment are too restrictive.
Response: We have modified Sec. 96.37(e) so that non-supervisory
employees providing non-exempt adoption services that require the
application of clinical skills and judgment must have at least a
bachelor's degree in any field and prior experience in family and
children's services, adoption, or intercountry adoption. Such employees
must be supervised by an employee of the accredited agency or approved
person who meets the educational and experience requirements in Sec.
96.37(d). This adjustment should enable agencies and persons to recruit
and retain the non-supervisory personnel they need to complete
Convention adoptions.
5. Comment: A commenter is concerned that requiring child
background study preparers to hold an MSW or other Master's degree will
hinder Convention adoptions. The commenter believes it will have
difficulty finding child background study preparers overseas that can
meet this requirement; in its experience, countries from which children
are often adopted into the United States rarely have schools of social
work, let alone Master's degree programs.
Response: The questioner appears to be referring to an incoming
case, in which a child background study would be prepared by a foreign
supervised provider or by a foreign provider and verified under Sec.
96.46(c)). In such a case, the standards in Sec. 96.37 would not apply
to the child background study preparer.
With respect to an employee of a U.S. agency or person, we have
revised Sec. 96.37(g) to remove the Master's degree requirement for
employees that prepare child background studies. This change applies to
all employees, whether in the United States or abroad. Please see the
response to comment 3 on this section, and section III, subsection B.2
of the preamble for further related discussion.
6. Comment: A commenter recommends adding a new standard as Sec.
96.37(h), to guard against agencies or persons creating subsidiaries to
conduct home studies as exempted providers, to evade hiring personnel
that meet the
[[Page 8095]]
education and experience requirements in Sec. 96.37, which the
commenter appears to believe agencies and persons will find to be too
onerous. The commenter believes that a standard is needed to state that
when there is overlapping funding, supervision, personnel, or office
space between ``exempt'' home study providers and non-exempt agencies
or persons, that the home study providers are not, in fact, exempt.
Response: We are not adding a new standard in response to this
comment, as we believe that the accrediting entity will have adequate
authority under these regulations to determine whether or not an agency
or person is improperly evading compliance with the standards in Sec.
96.37 by creating a ``shell'' exempted provider, and take adverse
action as appropriate. The adjustment in the final rule to remove the
Master's degree requirement for home study preparers employed by an
agency or person may also address the commenter's concern that agencies
or persons will be tempted to create subsidiaries to try to evade
hiring employees that meet the standards in Sec. 96.37.
7. Comment: A commenter asks that the Department regulate caseload
size. They believe that a caseload of 30-35 should be the absolute
maximum for intercountry adoption.
Response: While we understand the concern about large caseloads,
the Department is not persuaded that a specific caseload limit should
be a standard for accreditation or approval. We expect accrediting
entities to conduct oversight, pursuant to subpart I, to ensure that an
agency or person is providing quality services in substantial
compliance with these standards.
Section 96.38--Training Requirements for Social Service Personnel
1. Comment: A commenter believes that an agency or person must
provide new employees training on the Convention, the IAA and Federal
regulations, but that such training is unnecessary for licensed social
workers who will have significant knowledge in this area.
Response: The training requirements in Sec. 96.38 apply to all
employees of the agency or person. We believe that training of social
services personnel involved in intercountry adoptions is so essential
that we also effectively impose the Sec. 96.38 training requirements
on supervised providers in the United States, pursuant to Sec.
96.45(b)(2). In recognition of the concern expressed above, however,
Sec. 96.38(d) provides that an agency or person may exempt employees
from the elements of the orientation and initial training required by
Sec. 96.38(a) and (b) if the employee has demonstrated experience with
intercountry adoption, the Convention, and the IAA. We have changed
Sec. 96.38(d) to make clear that current as well as newly hired
employees may be exempted from training, so that the burden and
financial impact of training current employees is limited, and by
changing the phrase ``prior experience'' to ``demonstrated
experience,'' to give agencies and persons flexibility when their newly
hired and current employees already have experience with intercountry
adoption and knowledge of the Convention and the IAA.
2. Comment: Commenters requested that personnel receive balanced
training that is uniform and consistent throughout the intercountry
adoption community. Specifically, one commenter believes that personnel
should be trained about both the positive and negative aspects of
intercountry adoption. Another commenter recommends that employee
training include a course on ethical considerations in intercountry
adoption.
Response: We believe that the extensive list of topics that must be
covered under Sec. 96.38 will ensure that balanced training is
provided. We have added a requirement to Sec. 96.38(a)(5) that the
training include a discussion of ethical considerations in intercountry
adoption. Section Sec. 96.38(b)(6) also includes a requirement for
agencies and persons to provide training on adoption outcomes and the
benefits of permanent family placement.
3. Comment: Commenters request clarification that, during initial
employee training, training in ``child, adolescent, and adult
development'' applies to the development of the adopted child, and does
not require training in human development in general.
Response: We agree and have clarified Sec. 96.38(b)(10)
accordingly.
4. Comment: Commenters want to know whether or not the training
requirement in Sec. 96.38(c) is in addition to any training that may
already be required by their State. If so, commenters state that the
regulation would require many employees to perform 30-40 total hours of
annual training, with the high costs of such training passed on to
prospective adoptive parent(s).
Response: We have clarified in Sec. 96.38(c) that continuing
education hours required under State law may count toward the training
requirement, as long as the training meets the substantive requirements
of the standard by being related to current and emerging adoption
practice issues.
5. Comment: A commenter asks if the required training courses must
be approved or accredited and, if so, what governing body will accredit
or approve the courses. Other commenters recommend that employees
should be required to document training.
Response: Because of the variety of training opportunities and
variance in available training opportunities according to geography,
the Department has not mandated that training be accredited or approved
by any particular entity, and has added documented distance learning
courses as another example of an acceptable means to provide training
under Sec. 96.38(c). When the accrediting entity evaluates whether an
agency and person complies with Sec. 96.38, the agency or person will
have to provide some reliable documentation that confirms that
employees received (or qualified for exemption from) the required
training. The accrediting entity's on-site evaluators will check both
the training records and the content of the training materials used to
ensure that they are covering the content areas required under Sec.
96.38. We do not believe, however, that it is necessary in regulations
to detail what kind of documentation must be used.
6. Comment: One commenter strongly endorses the minimum requirement
of twenty hours of training for an agency's or person's employees who
provide adoption-related services, while others think that twenty hours
of annual training is excessive. One commenter proposes a compromise,
suggesting a reduction in training hours and/or extending the period to
complete the training. Another commenter opposed the training
requirements altogether, while still others endorsed the training
requirement as written.
Response: We are persuaded that requiring thirty hours of training
over a two-year period is reasonable and have changed the rule
accordingly. Using the time frame of two years provides flexibility,
and reducing the hours from twenty per year to approximately fifteen
per year reduces the time burden and cost to agencies and persons. At
the same time, the standard helps to ensure that those providing social
services involving clinical skills and judgment receive ongoing
training on adoption practice issues.
7. Comment: A commenter requests clarification regarding whether or
not staff exempted from initial training are still required to complete
the continuing training in Sec. 96.38(c).
[[Page 8096]]
Response: Staff exempted from orientation training in Sec.
96.38(a) and (b) are still required to complete the training
requirement of thirty hours in a two-year period under Sec. 96.38(c).
Thus, both new hires that become incumbents and incumbents must get
thirty hours of training over each two-year period of their employment
with the agency or person.
8. Comment: Commenters request that the Central Authority take a
greater role in collating and disseminating best practices and
translated copies of foreign adoption laws and other adoption related
information and establish a resource library as part of its duties
under Article 7(2)(a) of the Convention.
Response: We understand the need for best practices guides and
pamphlets and the interest in a resource library. The Central Authority
duties of the Department are, however, outside the scope of these
regulations, which lay out the rules regarding accreditation and
approval of agencies and persons.
Information Disclosure, Fee Practices and Quality Control Policies and
Practices
Section 96.39--Information Disclosure and Quality Control Practices
1. Comment: Some commenters think that it is unduly burdensome for
agencies and persons to provide a sample contract to prospective
adoptive parent(s) at initial contact, as required in Sec. 96.39(a).
Other commenters support requiring agencies and persons to provide a
sample copy of their contract.
Response: The adoption services contract contains important
information about what an agency or person is agreeing to do and what a
client is expected to do in a Convention adoption. The Department
believes that the information contained in the adoption services
contract is critical for prospective clients to consider at the
beginning of the adoption process as they compare agencies and persons
and determine which services are available from the different
providers. Therefore, the Department is not removing the requirement
that agencies and persons provide a sample contract to prospective
clients upon initial contact.
The Department has taken steps to reduce the burden on agencies and
persons of complying with the standards in Sec. 96.39(a). The
Department has removed from Sec. 96.39(a)(1), as redundant, the
proposed standard that the agency or person provide a separate
explanation of the mutual rights and responsibilities of clients and
the agency or person. The Department has also deleted Sec.
96.39(a)(3), which would have required disclosures of all entities with
whom the prospective client could expect to work in the United States
and in the child's country of origin and the usual costs associated
with their services. Instead, new Sec. 96.39(a)(2) now requires an
agency or person to disclose this information to prospective client(s),
upon initial contact, only for all supervised providers with whom the
prospective client(s) can expect to work.
2. Comment: Commenters request that the Department review several
contracts and establish a list of permitted or prohibited clauses to
create contract uniformity.
Response: We have taken no action on this request, as we believe it
is beyond the scope of this rule's establishment of accreditation/
approval standards. In addition, adoption services contracts must still
conform to different individual State laws, which would pose serious
challenges to developing one uniform model contract.
3. Comment: A commenter requests guidance on how agencies and
persons should monitor disruptions and dissolutions, in order to comply
with Sec. 96.39(b)(1).
Response: Please see the response to comments on Sec. 96.43, which
governs the tracking and recording of disruptions and, wherever
possible, of dissolutions in Convention adoption cases as required
under the IAA for Congressional reporting purposes. In general, the
provisions in Sec. 96.39(b)(1) on maintenance and disclosure of
disruptions and dissolution statistics to clients mirror Sec. 96.43
and only require agencies or persons to provide the information to
clients for the prior three calendar years.
4. Comment: Commenters suggest that agencies and persons should
also disclose to prospective adoptive parent(s) whether or not any of
their current or former clients have been prosecuted for crimes that
they committed against their children after the child's adoption.
Response: While the Department shares the commenters' concern about
parental abuse of adopted children, we have not made this change. The
information might suggest a deficiency in the agency or person's
screening of adoptive parents, but it is post-adoption information that
will not be consistently available, particularly when agencies do not
provide significant post-adoption services. In addition, there are
other ways in which an accrediting entity can determine whether proper
standards are followed in preparing or approving home studies.
5. Comment: A commenter believes that data on the number of parents
who apply to an agency or person to adopt each year is proprietary
information and requests that we remove Sec. 96.39(b)(2) requiring
such information be disclosed, if requested, to clients and prospective
clients.
Response: We are not revising the rule in response to this request.
Section 203(b)(1)(v) of the IAA mandates that the ``agency discloses
fully its policies and practices, the disruption rates of its
placements for intercountry adoption, and all fees charged by such
agency for intercountry adoption.'' Data on the number of adoption
placements is essential to evaluate data on disruption rates. Data on
the number of parents who apply to an agency or person to adopt each
year is also important to disclose because, in conjunction with the
data on placements, it allows prospective clients to judge the agency's
policies and practices with regard to how likely and how quickly it is
able to arrange placements.
6. Comment: A commenter believes that, because there is no way to
account accurately for all children awaiting adoption, agencies or
persons should not be required to furnish this number to prospective
adoptive parent(s).
Response: The Department has changed Sec. 96.39(b)(3) to require
that an agency or person make available to prospective adoptive
client(s) the number of children eligible for adoption and awaiting an
adoptive placement referral via the agency or person. The new language
clarifies that an agency or person is only responsible for disclosing
the number of children who are awaiting an adoptive placement referral
via the agency or person.
7. Comment: Many commenters request that Sec. 96.39(d),
prohibiting an agency or person from requiring a client to sign a
blanket waiver of liability, be omitted. Other commenters request that
waivers of liability be prohibited.
Response: The Department has deleted the provision prohibiting
blanket waivers of liability from Sec. 96.39(d), as discussed in more
detail above at section III, subsection B.3 of the preamble. Section
Sec. 96.39(d) of the final rule permits an agency or person to require
a client to sign a waiver of liability as part of the adoption services
contract if that waiver complies with applicable State law. The waiver
must also be limited and specific, and based on risks that have been
discussed and explained to the client in the written adoption services
contract.
8. Comment: As well as requesting that waivers be permitted,
commenters make a variety of requests related to the
[[Page 8097]]
specifics of such voluntary waivers including: (1) That ``approved''
language be included in voluntary and informed risk waivers; (2) that
standard risk waiver forms be developed and used; and/or (3) that
country-specific uniform risk waiver forms be mandatory. They believe
that, after acknowledging the possible risks, prospective adoptive
parent(s) will choose to proceed despite the known obstacles.
Response: It is the responsibility of each agency and person to
ensure that any waiver complies with applicable State law, and the
Department does not intend to mandate any specific waiver form or
language. It would be impracticable and inconsistent with its role for
the Department to create a risk waiver form for adoptions. To be clear,
it is the responsibility of each agency and person to disclose risks to
be assumed by the client that are known at the time the adoption
services contract is signed. If risk waiver forms are used, the agency
or person must take responsibility for the forms in light of the States
and Convention countries involved, and any other relevant factors.
9. Comment: Several commenters express deep concern about the
burden that the disclosure/waiver provisions and quality control
practices in Sec. 96.39 will impose on smaller, nonprofit agencies and
persons.
Response: The Department has tried to balance the concerns of small
agencies with the goal of protecting prospective adoptees, prospective
adoptive parent(s) and birth parents, all within the context of
complying with the requirements set forth by the Convention and the
IAA. The Department has changed the language of Sec. 96.39(d) to
permit a client to sign a waiver of liability, a revision that should
help reduce the impact on small agencies by allowing agencies to
allocate risks. We did not delete the other information disclosure
requirements in Sec. 96.39, because overall we believe they are
necessary to implement section 203(b)(1)(A)(v) of the IAA, or otherwise
further the purposes of the IAA and Convention.
10. Comment: Several commenters raise concerns about how the
accrediting entities and the Department will ensure that agencies and
persons permit document review and site evaluations when requested.
Response: The Department has clarified the standard in Sec.
96.39(e) so that an agency or person must cooperate with reviews,
inspections, and audits by the accrediting entity or the Department.
Section 96.25(c) also explicitly provides that accreditation or
approval may be denied, or adverse action taken, solely on the basis
that an agency or person did not provide requested documents or
information, or did not make employees available.
11. Comment: A commenter suggests that, because some Convention
countries prohibit the use of the Internet to place children for
adoption, agencies and persons should be required to inform the
accrediting entities at the time of accreditation or approval if they
work in such Convention countries, to ensure compliance with such laws.
Response: Each agency or person is responsible for complying with
the laws of the Convention country with which it is working, as well as
with applicable State and Federal laws. The Department has modified the
language in Sec. 96.39(f) to clarify that an agency or person may use
the Internet only to place individual children who are eligible for
adoption when such use is not prohibited by the State or Federal law or
by the laws of the child's country of origin, and then only under the
conditions stated in paragraphs (1)-(4). The Department is not
requiring, in Sec. 96.39(f), that agencies and persons inform
accrediting entities of the laws of Convention countries, however,
because we believe that accrediting entities already have the
authority, in their discretion, to request that their accredited
agencies and approved persons provide the applicable laws of the
Convention countries with whom they work so that they can ensure
compliance with such laws.
12. Comment: Commenters suggest that a new standard be added to
require that agencies and persons provide prospective adoptive
parent(s) upon initial contact, a statement that all documents and
information referred to in Sec. 96.39 are available to them, and that,
if the organization has 501(c)(3) status, they may also obtain IRS
Forms 990 and 1023.
Response: Section 96.39(a) requires the agency or person to provide
significant documents and information to prospective clients upon
initial contact. We have changed Sec. 96.39(b) to provide that the
agency or person must inform clients or prospective clients of the
additional information available under Sec. 96.39(b) and provide it
upon request. We believe it is sufficient to disclose the additional
information listed in Sec. 96.39(b) only upon request from a client or
prospective client, in light of the burden on agencies and persons. We
are not adopting the comment as it relates to IRS Forms 990 and 1023,
because the rule does not require that an agency or person obtain
501(c)(3) status, and again, do not believe the burden on agencies or
persons is warranted. Nothing in this standard would, however, prohibit
the agency or person from choosing to provide additional material upon
initial contact, or a prospective client from requesting additional
material.
13. Comment: One commenter requests that agencies and persons be
required to disclose to prospective adoptive parent(s) the criteria by
which they determine a child's suitability for intercountry adoption.
Response: We have taken no action in response to this request
because, under Article 4 of the Convention, the competent authorities
or public foreign authorities of the country of origin determine if a
child is eligible for adoption, not the agency or person. In an
incoming adoption case, the U.S. agency or person, in accordance with
Sec. 96.52(b)(2), is responsible only for obtaining from the Central
Authority or other competent authority in the country of origin the
child background study, proof that the necessary consents to the
child's adoption have been obtained (per Article 4 of the Convention),
and the necessary determination that the prospective placement is in
the child's best interests, and transmitting that information to the
prospective adoptive parent(s).
Section 96.40--Fees Policies and Procedures
1. Comment: To enable prospective adoptive parent(s) to compare
agencies and persons, many commenters request that agencies and persons
be required to provide a detailed breakdown or schedule of all fees and
expenses in a clear and understandable format, including a list of all
individuals that would be involved in the adoption, the services they
would provide and how much they would be paid for services rendered.
Several commenters highlight the need to have annotated fees and
expenses for all costs associated with caring for children and birth
parents prior to finalization of the pending adoption. Other commenters
note the importance of detailing expenses and fees owed to third
parties not acting as supervised providers. One commenter notes that
prospective adoptive parent(s) are at times required to subsidize
adoption referrals and assignments of children that foreign agencies
have made through informal agreements, private connections, or ``inside
government relationships.'' The commenter cites payments called
``foreign fees'' requested from adoptive parents that generally exceed
$10,000. The commenter recommends that agencies and persons be required
to
[[Page 8098]]
break down what is included in this ``foreign fee.'' Another commenter
is concerned that foreign officials require fees for ``facilitating''
the adoption process. Another commenter requests that the regulations
not require a breakdown of expenses but rather list fees in particular
Convention countries based on average costs there. Numerous commenters
support the regulations as written.
Response: Although we have made a few revisions for clarity, the
final rule, like the proposed rule, requires agencies and persons to
provide a detailed breakdown of fees and expenses for adoption
services. Section 96.40(b) requires an agency or person to disclose the
expected total fees and estimated expenses for the following
categories:
Home study;
Adoption expenses in the United States;
Foreign country program expenses;
Care of the child;
Translation and document expenses;
Fixed contributions that prospective adoptive parent(s)
must make to child protection or child welfare service programs in the
child's Convention country or in the United States; and
Post-placement and post-adoption reports.
In response to concerns about the items covered in the category of
foreign country program expenses, we have extracted from that category
the costs for the care of the child in the country of origin and listed
it in Sec. 96.40(b)(4) as a cost that must be separately identified.
We think that identifying this item separately, and listing examples of
the types of services that may be covered, will increase transparency
in identifying costs that are generally considered part of the foreign
country program fee. We have also changed Sec. 96.40(b)(3) to include
legal services as an example of foreign country program expenses.
We have also added a category for otherwise undisclosed fees and
estimated expenses to Sec. 96.40(c). Section 96.40(c) provides for
disclosure of services provided by third parties, and of travel and
accommodation expenses arranged by the agency or person, if not
disclosed under Sec. 96.40(b). Third-party fees are fees that the
agency or person expects that prospective adoptive parent(s) will have
to pay directly to a third party, such as a country of origin's Central
Authority. This disclosure standard ensures that an agency or person
provides in its disclosure for fees and estimated expenses for payments
to Central Authorities, translations, and documents and that it
discloses whether the prospective adoptive parent(s) will be expected
to pay these costs directly to third parties (either in the United
States or the child's Convention country), or through the agency or
person. This requirement applies regardless of whether the prospective
adoptive parent(s) will be billed directly or through the primary
provider.
In sum, we believe the final rule provides proper controls on the
potential for improper financial gain--a primary goal of the
Convention--without imposing unreasonable burdens on agencies and
persons. The regulations require a sufficient level of detail about
fees and expenses to allow prospective adoptive parent(s) to have a
clear understanding of how an agency or person uses fees for services
to complete a Convention adoption, thus enabling them to make informed
choices when selecting an agency or person to assist with their
Convention adoption.
2. Comment: A commenter requests that the Department, as the
Central Authority, record and track fees to provide a benchmark so that
agencies and persons charge similar fees to prospective adoptive
parent(s), and that it assess the reasonableness of the fees.
Response: Section 104 of the IAA requires the Department to submit
an annual report to Congress on numerous aspects of intercountry
adoptions. Pursuant to section 104(b)(7) of the IAA, one element of the
annual report is the range of adoption fees charged in connection with
Convention adoptions involving immigration to the United States and the
median of such fees set forth by the country of origin. Thus, the
Department will be tracking the general trends in fees. Specific
information on the fees charged by an agency or person for Convention
adoptions, must be provided by the agency or person to the accrediting
entity pursuant to Sec. 96.43(b)(6). Section 96.40 also requires the
disclosure of a wide range of fee information to prospective clients
and clients, which should allow prospective adoptive parent(s) to
compare fees. The IAA does not, however, give either to the Department
or the accrediting entities the authority to regulate the level of fees
an agency or person charges to clients, for reasonableness or
otherwise.
3. Comment: A commenter recommends that an agency or person must
fully disclose to prospective adoptive parent(s), in the written
adoption services contract, information on adoptive parent eligibility
criteria, mutual rights and responsibilities of parents, the role of
the agency or person, the services to be provided by the primary
provider, the names of supervised providers, its practices, policies
and procedures, and its refund policies.
Response: The terms to be included in an agency's or person's
adoption services contract are covered by various sections of the
regulations. Collectively, these sections require much of the
information the commenter believes should be included. Please see
responses to comments 1 and 9 on Sec. 96.39 and to comment 2 on Sec.
96.50. Additionally, Sec. 96.51(b) requires an agency or person to
inform prospective adoptive parent(s) in the adoption services contract
whether or not the agency or person will provide post-adoption
services.
4. Comment: One commenter requests that all references to
``expenses'' be removed from Sec. 96.40(b)(1)-(7). The commenter
states that it is very difficult to predict the actual expenses of an
individual intercountry adoption because there are so many unknown
variables. It suggests that fees be based on the average cost of an
adoption in a particular Convention country, rather than expenses.
Several other commenters are concerned that the regulations preclude
them from providing fee estimates for the overall cost of the
intercountry adoption process.
Response: The Department agrees that it can be difficult to know
the exact cost of each service that is required to complete an
individual intercountry adoption. The regulations do not preclude an
agency or person from providing a fee estimate for the total, overall
cost of the intercountry adoption process. The standards do provide,
however, that the total fee charged must include a breakdown, by
specified categories, of how the overall fee is used. The Department
has devised a standard that requires agencies and persons to categorize
the fees and expenses an agency or person expects to charge in a
uniform format. The fee categories an agency or person must use are in
Sec. 96.40(b) and (c). The rule does not require an agency or person
to itemize every specific charge for each listed category. To reinforce
this point, the Department is modifying the rule to refer to ``expected
total fees'' and ``estimated expenses,'' as appropriate, throughout
Sec. 96.40.
5. Comment: One commenter requests that the rule clearly state that
estimated contributions should be a fixed dollar amount or range, not a
percentage, unless required by the country of origin.
Response: The Department has changed the provision to state that an
agency or person must disclose ``any
[[Page 8099]]
fixed contribution amount or percentage,'' because it intends this
provision to cover circumstances where the law of the country of origin
may require the contribution to be determined by a percentage as well
as circumstances where the contribution is based on a fixed dollar
amount. We recognize that this is not the preference of the commenter,
but believe the approach taken is consistent with the IAA, the
Convention, and current practices.
6. Comment: Commenters request clarification regarding Sec. 96.40
and the refund of fees paid for services not rendered. Commenters are
concerned that agencies or persons may decide to classify all fees as
nonrefundable. They believe that all fees should be refunded if the
adoption is terminated due to agency problems, and if there is no fault
on the part of the prospective adoptive parent(s).
Response: An agency or person incurs administrative and other
expenses even if a child is not ultimately placed with prospective
adoptive parent(s). Therefore, the Department is not modifying the rule
to prohibit a portion of fees from being nonrefundable. The Department
believes that Sec. 96.40(a)'s requirement that agencies and persons
disclose up front conditions under which their fees or expenses may be
refundable or nonrefundable will allow prospective adoptive parent(s)
to make informed choices about which agency or person they want to
assist them with a Convention adoption.
7. Comment: A commenter thinks that requiring the disclosure of
special service fees creates an obligation for an agency or person to
specifically identify if the fee is used to support other purposes of
the organization, such as cultural programs or scholarships. The
commenter believes that, while it is reasonable to disclose this
information, it is not practical for an agency or person to account for
the use of such funds on a case-by-case basis.
Response: The Department believes that it is important to disclose
the practice of using a portion of fees to fund special services such
as cultural programs for adoptees and their families, but recognizes
that it may be impractical to require an agency or person to account
for the use of such funds on an individual basis. Accordingly, we have
changed the standard at Sec. 96.40(e) (which appeared as Sec.
96.40(d) in the proposed rule) to require, where applicable, ``a
general description of the programs supported by such funds.''
8. Comment: Commenters support the standard at Sec. 96.40(f)
(which appeared as Sec. 96.40(e) in the proposed rule) that agencies
and persons provide prospective adoptive parent(s) the option to
transfer funds overseas to minimize direct cash payments when possible.
One commenter would like ``minimized'' to have a clearer definition in
this context and would like a maximum amount specified for direct cash
transactions. Another commenter points out that many countries of
origin do not have monetary systems that allow direct fund transfers,
and that some foreign agencies will not accept electronic transfers.
Response: The Department has not modified Sec. 96.40(f) on the
transfer of funds. The Department is aware that many of the fees
charged by public authorities in Convention countries--for example, for
passports, birth certificates, adoption certificates, or court
documents--must be paid in cash. For this reason, the standard does not
mandate that agencies and persons must only use electronic fund
transfers for all transactions or that prospective adoptive parent(s)
should not expect to use any cash in the Convention country. Instead,
the regulations require agencies and persons to use available methods
so that the need for direct cash transactions by prospective adoptive
parent(s) is minimized. It would not be practicable to set a maximum
amount for such transactions, given the variances between Convention
countries.
9. Comment: A commenter is concerned about the standard in Sec.
96.40(g) (which appeared as Sec. 96.40(f) in the proposed rule),
allowing agencies or persons to expend up to $800 in additional,
undisclosed fees and expenses, without specific consent of the
prospective adoptive parent(s). As well, the commenter suggests that
the standard should restrict the number of times an agency or person
can obtain consent to expend funds in excess of $800 on unforeseen
additional fees and expenses, even if the prospective adoptive
parent(s) have waived the notice and consent requirement for such
expenditures in advance. Two commenters suggest that the standard may
be inconsistent with the IAA requirement that agencies and persons
disclose fully all fees charged. They believe the standard should
require all fees to be disclosed in advance, with no last minute fee
increases.
Response: The Department shares the commenters concerns about
charging large, last minute fees that were not disclosed to the clients
in advance. Nevertheless, it is not unusual in an intercountry adoption
for unexpected expenses to arise in the country of origin. It would be
unreasonable to require agencies and persons to absorb the costs of all
unforeseen expenses that may arise in all Convention adoptions.
Therefore, the regulations attempt to strike a balance between
protecting prospective adoptive parent(s) from large, undisclosed fees
and allowing agencies and persons some flexibility to handle unforeseen
circumstances that may arise in their Convention adoption cases.
Thus, the final rule requires that, to charge fees or expenses that
were not disclosed in the written adoption services contract, an agency
or person must obtain the consent of the prospective adoptive parent(s)
prior to expending any funds in excess of $1,000 (increased from $800
in the proposed rule) for which the agency or person will hold the
prospective adoptive parent(s) responsible, or give the prospective
adoptive parent(s) the opportunity to waive the notice and consent
requirement in advance. The Department is satisfied that this approach
is not inconsistent with the IAA. The amount requiring either notice
and consent or advance waiver was increased from $800 to $1000, to
provide flexibility, and minimize the burden of seeking consents.
10. Comment: Commenters feel that agencies and persons should
provide receipts for domestic fees and expenses only, and should not be
expected to provide receipts for fees and expenses paid in the
Convention country as proposed in Sec. 96.40(f)(3) of the proposed
rule, which is now Sec. 96.40(g)(3). A commenter recommends that
written receipts should be provided for fees and expenses collected
directly by the agency or person. One commenter supports the regulation
requiring agencies and persons to provide receipts so that all funds
can be accounted for. The commenter is concerned that agencies and
persons will decide to have money paid directly to hired contractors to
avoid giving receipts.
Response: The final rule requires that agencies and persons provide
receipts for unforeseen Convention country fees and expenses, because
otherwise agencies and persons would not have to account at all to
their clients for these expenses. The Department has changed the
standard in Sec. 96.40(g)(3), however, so that an agency or person is
only required to provide written receipts for unforeseen additional
fees and expenses incurred in the Convention country that were ``paid
directly by the agency or person'' in the Convention country. As
discussed previously, the Department has also added new Sec.
96.40(c)(1), which requires agencies and persons to disclose fees and
estimated expenses for
[[Page 8100]]
services provided by a third party that will be paid directly by the
prospective adoptive parent(s). The Department also notes that
Sec. Sec. 96.45(b)(6) and 96.46(b)(8) require that a primary provider
require that its supervised providers provide clients with an itemized
bill of all fees and expenses to be paid, if the supervised providers
bill the clients directly.
11. Comment: Commenters request that the word ``prospective'' be
removed from Sec. 96.40(g) (which appeared as Sec. 96.40(f) in the
proposed rule). Commenters believe that adoptive parent(s) are no
longer prospective at this stage in the adoption process. Others
request that the regulations remain as written.
Response: Section 96.40(g) addresses, in part, unforeseen fees that
may occur before an adoption is finalized, either in the Convention
country or in the United States. Therefore, the Department believes
that the use of the phrase ``prospective'' adoptive parent(s) is
appropriate.
12. Comment: A commenter thinks that Sec. 96.40(g) of the proposed
rule, which required an accounting of ``fees and expenses incurred
within thirty days of completion of delivery of the services'' requires
agencies and persons to reiterate detailed information about fees that
has already been provided. The commenter believes it is unclear whether
this rule is asking an agency or person to substantiate the fees that
were charged for services rendered. It also thinks that Sec. 96.40(g)
of the proposed rule, requiring an accounting, should be removed or
that the deadline should be extended from thirty to sixty days.
Response: The Department agrees that requiring an accounting is
redundant and, therefore, has deleted Sec. 96.40(g) of the proposed
rule from the final rule. In further response to this comment, we have
extended the time frame for agencies and persons to refund fees, which
appears in Sec. 96.40(h), from thirty days to sixty days to minimize
the burden arising from this standard.
Responding to Complaints and Records and Reports Management
Section 96.41--Procedures for Responding to Complaints and Improving
Service Delivery
1. Comment: Several commenters are concerned that the regulations
leave agencies and persons vulnerable to complaints about activities
outside the scope of their work. To safeguard agencies and persons from
such complaints, one commenter suggests this section be changed to
require that the complaint be related to the IAA.
Response: The Department has not changed the language from the
proposed regulation as requested. Section 96.41(b) makes clear that
only complaints that raise an issue of compliance by the agency or
person with the Convention, the IAA, or the regulations implementing
the IAA are within the scope of the standard. This broader scope
encompassing the Convention and these regulations, as well as the IAA,
is appropriate. The Department has changed Sec. 96.41(b) so that the
description of the type of complaints an agency or person must accept
mirrors the description of the type of complaints that the accrediting
entities will process, in Sec. 96.68. See also the response to comment
1 in Sec. 96.69.
In addition, Sec. 96.41 has also been revised to clarify that
references to complaints in other paragraphs of Sec. 96.41 refer back
to complaints filed pursuant to Sec. 96.41(b).
2. Comment: Several commenters would like ``post-adoptive parent''
added to the list of those qualified to lodge a complaint. They believe
that otherwise the provision could exclude the many parents who waited
until their adoptions were complete before making complaints to the
appropriate authorities.
Response: We have changed Sec. 96.41(b) to refer also to adoptive
parents.
3. Comment: Several commenters would like the regulations to
clarify what constitutes a complaint, so that the number of frivolous
complaints will be limited. They recommend that the term ``complaint''
be defined. Several commenters suggest that a complaint be defined as a
written document, which is signed, and which addresses a specific
aspect of a service that is under the control of the agency or person
and governed by the regulations. One commenter further requests the
section be amended to reflect that anonymous complaints may not be
filed. Another commenter would like to see the regulations protect the
confidentiality of those who make complaints.
Response: We understand that agencies and persons are concerned
about being held accountable for problems that are not within their
control. Section 96.41(b) details the components of complaints that an
agency or person will be held accountable for addressing, stating that
such complaints must be dated and signed by a birthparent, a
prospective adoptive parent, an adoptive parent, or an adoptee.
Furthermore, the complaint must refer to services or activities of the
agency or person (including its use of a supervised provider) that the
complainant believes raise an issue of compliance with the Convention,
the IAA, and/or the regulations implementing the IAA. We have also
changed Sec. 96.41 to make clear that the obligations set forth in
this standard (with respect to the processing, recording and reporting
of complaints) relate only to those complaints that are received
pursuant to Sec. 96.41(b). Therefore, we do not believe it is
necessary to add a definition of ``complaint'' to the rule.
4. Comment: Some commenters are concerned that agencies might
disregard Sec. 96.41's standard forbidding retaliatory action against
those who file complaints. Several commenters recommend that the
Department add provisions for severe penalties to be assessed against
any agency violating the prohibition on retaliation. Other commenters
think that the regulation forbidding retaliatory action is adequate as
written.
Response: We concur with those commenters who find Sec. 96.41(e)
adequate. If an agency or person disregards the prohibition against
retaliatory action, complainants have the option of filing a complaint
with the Complaint Registry, for referral of the alleged misconduct to
the accrediting entity. The accrediting entity may take adverse action
as necessary. To further add to the protection of individuals who
complain against an agency or person, however, we have made a minor
change to Sec. 96.41(e) so that it explicitly prohibits an agency or
person from retaliating against an individual for providing information
to an accrediting entity on the agency's or person's performance. See
also the response to comment 3 in Sec. 96.69.
5. Comment: Two commenters are concerned that requiring agencies
and persons to summarize complaints and corrective actions on a
quarterly basis places too heavy a burden on agencies. They recommend
the Department eliminate that requirement. One of the commenters
believes semi-annual or annual reporting would be more appropriate.
Response: Because of its value as an oversight tool, we are keeping
the requirement that agencies and persons must provide a summary of
complaints to the accrediting entity and the Department, but we have
amended the regulation to require semi-annual reporting rather than
quarterly reporting.
6. Comment: Many commenters suggest that individuals should be able
to file complaints directly with the Complaint Registry, not just with
the adoption agency or person. Other commenters believe complainants
[[Page 8101]]
should try to resolve issues through the complaint process of an agency
or person before filing with the Complaint Registry.
Response: With the limited exception of complaints brought by
individuals who are not party to the specific Convention case, we have
not accepted the recommendation to allow complainants to file
complaints directly with the Complaint Registry. An individual who is a
party to a specific Convention adoption case must lodge any complaint
relating to that case first with the agency or person providing
adoption services, if a U.S. provider, and the primary provider, if
different, in order to give the agency or person an opportunity to
resolve the issue. For a discussion of the complaint process, please
see the responses to comments 2, 3, and 4 in Sec. 96.69.
7. Comment: One commenter wonders if there should be a deadline
after an adoption has taken place for adoptive parents to file a
complaint about adoption services.
Response: Although we want to encourage complainants to address
issues in a timely manner, we are reluctant to place an arbitrary time
limit on complaints in these regulations, which regulate the
accreditation and approval of agencies and persons. We have not changed
the proposed rule in response to this request.
8. Comment: Several commenters would like to ensure the complaint
process is transparent to the public. One commenter says that an agency
or person should be required to post on its website the periodic
reports summarizing complaints that they send to the accrediting
entity. One commenter requests that the regulations include a provision
stating that adoption agencies and persons must disclose, pre-referral,
any complaints that have been directed against the agency or person.
Response: The Department believes that the rule's provisions on
complaint resolution provide adequate transparency with respect to
complaints, and is not making any change in response to these comments.
If a complainant is dissatisfied with the resolution of a complaint by
an agency or person, the complainant may file a complaint with the
relevant accrediting entity through the Complaint Registry, as
described in subpart J. Once the Convention is in force, the
information dissemination requirements of subpart M will require
disclosure to the public of information related to substantiated
complaints and thereby keep the public adequately informed about
complaints against agencies and persons.
9. Comment: One commenter would like the regulations to include a
provision requiring agencies to educate prospective adoptive parent(s)
about the complaint process. Another commenter suggests an independent
entity should be created to educate adoption clients and monitor
complaint trends.
Response: The regulation requires agencies and persons to provide
their clients information regarding the complaint process, including
contact information for the Complaint Registry, at the time the
adoption contract is signed. Also, we have added to Sec. 96.41(b) a
requirement that the agency or person advise complainants of procedures
available to them if they are dissatisfied with the agency's or
person's response to their complaint (which may include any internal
appeals process, or information on filing complaints with the Complaint
Registry). We feel that the standard requires adequate notice to
prospective adoptive parent(s) about complaint procedures. We are
hopeful that information about the Complaint Registry will be
disseminated widely, through various channels (including the
Department's Web site, accrediting entities' Web sites, advocacy
groups, adoption support groups, and adoption Web sites) so that the
notice provided by the agency or person will reinforce information
already publicly available to prospective adoptive parent(s).
10. Comment: A commenter recommends that the Department add a
standard providing that ``where the agency or person is acting as the
primary provider, the procedures specified in Sec. 96.41(a) through
(h) [concerning responding to complaints and improving services
delivery] include any and all complaint(s) relating to both the primary
provider and to any and all supervised provider(s).''
Response: We find the change unnecessary. A complaint that a
primary provider using supervised providers had not ensured that
adoption services were provided consistent with the IAA and these
regulations is included within the types of complaints that may be
filed with the agency or person under Sec. 96.41(b), or with the
accrediting entity via the Complaint Registry pursuant to subpart J. In
addition, Sec. 96.45(b)(2) requires primary providers to ensure that
their domestic supervised providers comply with Sec. 96.41(b) through
(e).
11. Comment: One commenter requests that birth parents be made
aware of how to pursue complaints.
Response: Please see the response to comment 5 on Sec. 96.36,
above, which addresses this comment.
Section 96.42--Retention, Preservation, and Disclosure of Adoption
Records
1. Comment: Some commenters believe that Sec. 96.42(a) should
specify a uniform Federal time frame for the retention of adoption
records. Several commenters object to the use of individual State laws
to govern the retention of adoption records. Several other commenters
request that adoption records be retained permanently because future
children and relatives--in addition to the adoptee--have an interest in
the adoption records. Other commenters suggest a minimum retention
period range from 75 to 100 years.
Response: In the proposed rule, the Department deferred entirely to
State law in the standard for retention of adoption records. Section
401(a) of the IAA focuses on the preservation of Convention records.
(See the final rule for part 98 of Title 22 of the CFR published today
in the Federal Register.) Convention records are those records in
custody of DHS and the Department. The Department wants to stress that
adoption records are different from Convention records. Adoption
records are records that are received or maintained by agencies,
persons, or domestic public authorities. The IAA is silent on whether
or not there should be an accreditation standard on retention of
adoption records.
We understand the concerns regarding deference to State laws, as
State retention requirements on preservation of records may vary.
Section 96.42(a) of the final rule, nevertheless, continues to set a
standard that requires that agencies and persons preserve adoption
records for as long as State law requires. Consistency with State law
enhances agencies' and persons' ability to comply with these
regulations and minimizes the burden of storing records for periods
beyond what is already required under State law.
2. Comment: Some commenters would like to see a Federal agency, not
agencies or persons, retain adoption records because agencies or
persons may cease operations and records may be lost. Some commenters
request that adoption records in the custody of agencies and persons be
accessible through FOIA. Other commenters suggest that adoption records
should be retained in a national archive. Another commenter believes
that adoption records for adoptions finalized in a Convention country
should be accessible through FOIA.
[[Page 8102]]
Response: We are not making any change to Sec. 96.42 in response
to these comments. Section 401(c) of the IAA mandates that applicable
State law continue to govern disclosure, access, and penalties for
unlawful disclosure of adoption records. By making the Department or
some other Federal agency custodian of adoption records, we would be
federalizing a function that Congress determined in section 401 of the
IAA to be better regulated at the State level. In addition, attempting
to establish a Federal records depository for non-Federal records would
raise a host of legal, management, and funding issues. Finally, the
Department does not have the authority to require countries of origin
to retain adoption records. The laws of the country of origin govern
access to and preservation of records that are maintained by its public
foreign authorities.
3. Comment: A commenter requests that the proposed regulations
specify, with a strict definition, which adoption records must be
retained.
Response: The definition of adoption record is found in Sec. 96.2.
It includes, but is not limited to, ``photographs, videos,
correspondence, personal effects, medical and social information and
any other information about the child'' received or maintained by
agencies and persons or public domestic authorities. The definition
includes a range of types of materials to make it clear that agencies
and persons must retain all information about the child that comes into
their custody. We do not believe that the definition of an ``adoption
record'' must be changed.
4. Comment: One commenter requests that the regulations outline
strict enforceable regulations on the physical maintenance, storage,
and retention of adoption records based on established and professional
archival standards.
Response: We have changed Sec. 96.42(a) to state that the agency
or person must retain or archive adoption records in a safe, secure,
and retrievable manner.
5. Comment: Several commenters request that the regulations clarify
that the State law that applies to adoption records is the law of the
State in which the agency or person is physically located.
Response: We have not made this change because, in providing that
``applicable State law'' will govern disclosure of, access to, and
penalties for unlawful disclosure of adoption records, IAA section
401(c) is silent on which State's law is ``applicable.'' State
conflicts-of-laws rules thus would determine which State law is
applicable, if the question should arise.
6. Comment: One commenter requests the establishment of an
international registry that requires both the adoptee and birth parents
to consent to release of records before adoption records may be
disclosed.
Response: We decline to make any change in response to this
comment, which is beyond the scope of these accreditation/approval
regulations. Section 401(c) of the IAA makes it clear that access to
adoption records in the United States will be governed by applicable
State law.
7. Comment: Several commenters express concern about the access
that adopted persons and their families will have to their adoption
records. They would like the regulations to make adoption records
available to adopted persons and their families at minimal or no cost.
One commenter adds that agencies and persons should be required to
respond to record requests in a timely fashion. It requests that the
regulations clarify which information can be given to the adopted
person or family, when it can be given, and how it must be requested.
It further requests regulations regarding access to records generated
in countries of origin.
Response: We are making no change in response to these comments.
Under section 401(c) of the IAA, access to adoption records is governed
by State law, including State law on costs and timing of access to
adoption records. Laws governing specific issues related to access to
adoption records vary from State to State. Access to Convention records
will be governed by applicable Federal law, including the FOIA and the
Privacy Act.
8. Comment: Several commenters were confused about whether
Sec. Sec. 96.42(c) and (d) of the proposed rule, regarding disclosure
of information and protection of privacy, were meant to preempt State
laws on disclosure. Some commenters worried that these sections were
creating a Federal law on access to information about adoptees' and
birth parents' identities. Of those commenters, several were concerned
that Sec. 96.42(c) did not adequately protect the privacy of adoptees,
birth parents, and prospective adoptive parent(s). Others were
concerned that Sec. 96.42(d) would inappropriately block access to
adoption records.
Response: Section 96.42(c) in the proposed rule was not meant to
preempt State laws regarding disclosure, privacy protection, or access
to adoption records or other information. The proposed rule standard
specifically referenced applicable State law. Likewise, Sec. 96.42(d)
in the proposed rule was not intended to change applicable State law on
access to adoption records or to block access to adoption records by
birth parents, adoptees, or adoptive parents otherwise permitted by
State law.
To clarify and avoid confusion, however, we have deleted proposed
Sec. Sec. 96.42(c) and (d) from the final rule, with the exception of
the requirement that the agency or person ``safeguards sensitive
information,'' which is a standard required by IAA section
203(b)(1)(D)(iii). This standard has been relocated to Sec. 96.42(c)
of the final rule (Sec. 96.42(e) of the proposed rule). Agencies and
persons must still comply with applicable State law on access to
adoption records. Consistent with this, Sec. 96.42(a) clearly defers
to applicable State law as the basis for the standard for retaining and
archiving adoption records.
Section 96.43--Case Tracking, Data Management, and Reporting
1. Comment: A commenter agrees with the principle of requiring
reports by primary providers. The commenter also believes that
requiring annual reports would be too costly and time consuming. It
requests that these reports be submitted every two years instead.
Response: Section 104 of the IAA requires the Department to submit
an annual detailed report including the data outlined in Sec. 96.43 of
this regulation. The information collected by the primary providers,
and provided to the accrediting entity or Department, is used to
fulfill the Department's responsibilities under the IAA. Therefore we
have not changed the requirement for agencies and persons to report on
the elements in Sec. 96.43 on an annual basis.
2. Comment: One commenter suggests that agencies and persons be
required to report on the ethnicity of the child and birth parents for
cases involving children immigrating to the U.S. and those emigrating
from the U.S.
Response: Section 104 of the IAA lists the required data to be
collected and reported by the Department regarding Convention (and in
some cases non-Convention) adoptions. The language of Sec. 96.43 of
these regulations generally mirrors the data requirements in the IAA.
The IAA has no requirement to report the ethnicity of the child or the
birth parents, and we are unconvinced of the need for such a
requirement. In the interests of reducing reporting burdens on agencies
and persons, we decline to insert such a requirement into these
regulations.
3. Comment: A commenter suggests that, for every child emigrating
from the United States, an agency or person be
[[Page 8103]]
required to provide a statement that the placement is being made in
compliance with the Indian Child Welfare Act and either that the child
is not a Native American or that the tribe has been notified and
permission for an out-of-country placement has been received.
Response: There is already a requirement that agencies and persons
comply with all applicable requirements of the Indian Child Welfare
Act, in Sec. 96.54 of these regulations. The accrediting entity will
determine the documentation necessary to evaluate compliance with this
standard. We have not specified that compliance with this particular
standard will be established by a written statement; as with all of the
standards, the accrediting entity will decide what documentation and
information is necessary to measure compliance.
4. Comment: A commenter believes that information about disruptions
and dissolutions should be tracked regardless of whether a child is
subsequently placed with another family in another country or in the
United States.
Response: We are making no change in response to this comment.
Section 96.43 already requires an agency or person to provide
information on disrupted adoptions regardless of whether a child is
placed with another family. Agencies and persons are required to
provide the same information on dissolved adoptions wherever possible.
The Department has qualified the requirements for tracking information
on dissolved adoptions with the phrase ``wherever possible'' because we
recognize that agencies and persons may not be able easily to get
information about what happens to a child after an adoption is
completed.
5. Comment: A commenter believes a child's records should include
the name of the individual(s) who performed the home study for the
prospective adoptive parent(s).
Response: The IAA does not require the name of the individual who
performed the home study to be included in a child's records, and the
Department does not believe it is necessary to impose such a rule.
6. Comment: Two commenters believe agencies and persons should
report if they have ever operated under a different name or if their
principals have ever worked with different agencies or persons.
Response: Agencies and persons are required to provide information
about operations under different names pursuant to Sec. Sec. 96.32 and
96.35 of these regulations. Section 96.32(e) requires agencies and
persons to disclose to the accrediting entity if directors, managers,
or employees previously worked with other providers of adoption
services. In addition, we have added to Sec. 96.35(c)(5) a standard
that agencies and persons must report if their individual officers,
directors, or employees are known to have been or currently are
carrying out activities that are inconsistent with the principles of
the Convention. It is, therefore, unnecessary to have a similar
reporting requirement in Sec. 96.43.
Service Planning and Delivery
Section 96.44--Acting as Primary Provider
Section 96.45--Using Supervised Providers in the United States
Section 96.46--Using Providers in Convention Countries
1. Comment: Most commenters have strong reactions to the
regulations governing the responsibilities of primary providers. Many
commenters believe that requiring primary providers to assume
responsibility for the actions of supervised providers--both U.S. and
foreign--would prove to be unworkable. On the other hand, other
commenters believe that making primary providers liable for the actions
of supervised providers, if those actions were negligent, is essential
to ensuring the protection of children, birth parents, and adoptive
parents. Numerous commenters believe that the liability provisions in
Sec. Sec. 96.45 and 96.46 of the proposed rule should be stricken.
Many of the commenters support the regulations as a framework for
working with supervised providers, absent the liability provisions.
Commenters state in particular that assigning liability to a single
primary provider places an unmanageable financial burden on agencies
and persons who serve as primary providers. Other commenters believe
that small agencies and social workers who would serve as supervised
providers will be forced out of practice because primary providers will
be unwilling to accept legal responsibility for their work.
Several commenters recommend that, if the final regulations contain
liability provisions, the Department should limit liability through
caps on damages, limits on attorney fees, the imposition of a statute
of limitations in Convention cases, and a realistic standard of proof
for agencies in Convention cases. Other commenters recommend that the
regulations provide for liability exemptions for primary providers who
can demonstrate ``due diligence'' in the selection and oversight of
their supervised providers. Many commenters assume that the liability
provisions impose a strict liability scheme and exceed the statutory
authority provided in the IAA. There are some commenters who support
the liability provisions in the regulations, however. These commenters
request that the section remain unchanged. Some commenters would like
primary providers to be required to treat entities accredited by
Convention countries as supervised providers.
Response: The Department has addressed, at section III, subsection
B.4 of the preamble, above, these comments and its decision to remove
the provisions of the proposed rule that required the primary provider
to retain legal responsibility for the adoption services provided by,
and assume liability for, its supervised providers. Consistent with
that discussion, the Department has deleted proposed rule provisions
Sec. Sec. 96.45(b)(8), 96.45(c), 96.45(d), 96.46(b)(9), 96.46(c), and
96.46(d). The regulations as now revised are in no way intended to
allocate the risk of tort liability between a primary provider and a
supervised provider. Instead, they focus on the primary provider's
responsibility, in the accreditation/approval context, for the actions
of its supervised providers to the extent that such actions reveal the
primary provider's non-compliance with a specific standard under
Sec. Sec. 96.45 or 96.46 (a) or (b).
As explained above, at section III, subsection B.4 of the preamble,
although we have removed the provisions requiring primary providers to
assume legal responsibility for the actions of their supervised
providers, we have expanded the types of providers that primary
providers must supervise. The Department has revised Sec. 96.14 to
require a U.S. accredited agency or approved person acting as a primary
provider to treat other U.S. accredited agencies and approved persons
providing services on the case in the United States as supervised
providers (Sec. 96.14(b)(1)), and to treat foreign entities accredited
by a Convention country as supervised providers (Sec. 96.14(c)(2))
unless they are performing a service qualifying for verification under
Sec. 96.46(c). The Department believes that holding primary providers
responsible through the accreditation/approval process for accredited
providers assisting with a case will provide an incentive to the
primary partner to choose any provider partner carefully, offsetting
the deletion of the requirement allocating legal responsibility for the
conduct of supervised providers to the primary provider.
[[Page 8104]]
In addition, the Department has added language to Sec. 96.46(a)(5)
that requires a primary provider to ensure that a foreign supervised
provider is accredited in the Convention country in which it operates,
if accreditation is required by the laws of that Convention country to
perform the adoption services the foreign supervised provider is
providing.
As explained in section III, subsection A above, Sec. 96.46(c) now
recognizes that contemporaneous supervision by a U.S. accredited agency
or approved person will generally not be possible with respect to a
limited number of services performed in Convention countries--obtaining
consents and preparing child background studies in incoming cases
(child immigrating to the United States), and preparing home studies in
outgoing cases (child emigrating from the United States)--and
accordingly allows the U.S. primary provider the option of verifying
after the fact that such services were obtained in accordance with
applicable foreign law and the Convention. At a minimum, such steps
will require review of the relevant reports and documentation to
ascertain that applicable requirements have been satisfied. Section
96.44 has also been revised to conform to this change in Sec. 96.46.
Overall, the modifications that the Department has made to the
regulations do not change the basic framework that was set up in the
proposed rule. Agencies and persons acting as primary providers will
continue to be responsible for monitoring the compliance of supervised
providers and the accreditation and approval process will serve as a
check on this responsibility. Primary providers will not, however, be
required by these regulations to assume legal responsibility for the
acts of their supervised providers. The Department believes this
structure will promote compliance with the Convention, the IAA, and
these regulations, without making it prohibitively difficult for
accredited agencies and approved persons to work with other agencies
and persons in the United States or with providers in Convention
countries.
2. Comment: Several commenters maintain that the indemnification
provisions outlined in Sec. Sec. 96.45(d) and 96.46(d) do little to
protect the primary provider. Some commenters state that the primary
provider could be out of business before it has the chance to seek
indemnification against the supervised providers. Commenters also
contend that many supervised providers would not have the resources to
fulfill the indemnification obligation.
Response: As explained above, the Department has removed the
requirements that primary providers assume legal responsibility for the
actions of the supervised providers operating under their supervision.
Therefore, the regulations' indemnification standards are no longer
necessary, and the Department has deleted Sec. Sec. 96.45(d) and
96.46(d).
3. Comment: Several commenters point out that prospective adoptive
parent(s) decide which agencies and persons to use for certain adoption
services. For instance, prospective adoptive families often complete a
home study before they even approach an agency. Commenters request that
the supervision provisions be modified to reflect such situations.
Response: The Department understands the concern about providers
selected by prospective adoptive parent(s). Under this rule, however,
an accredited agency, temporarily accredited agency, or approved person
will have to be identified and act as the primary provider in each
Convention case. This primary provider, as identified under Sec.
96.14, is responsible for the provision of adoption services in the
case as provided in Sec. 96.44. Providers who do not comply with this
framework will not be able to provide services to prospective adoptive
parent(s).
With respect to prospective adoptive parent(s) in the United States
who have a home study completed before choosing a primary provider, if
the home study was prepared by an exempted provider, the primary
provider will be required to ensure that the home study is approved
consistent with Sec. 96.47(c). The same is true with regard to
exempted providers performing child background studies.
With respect to child background and home studies prepared in
Convention countries, Sec. Sec. 96.44 and 96.46(c) will allow the U.S.
primary provider to verify the performance of the service, as discussed
above at section III, subsection A, and in response to comment one
above.
4. Comment: Two commenters point out that the term ``supervised''
has ramifications for agencies and persons because of the distinctions
made by the Internal Revenue Code between employees and independent
contractors. The commenters request that this differentiation be
reflected in the final regulations. The commenters also request that
the regulations clarify that they do not prevent an agency or person
from employing an independent contractor.
Response: The Department does not intend the use of the IAA term
``supervised'' to determine the treatment of any individual or entity
under the U.S. Internal Revenue Code. Supervised providers may be
independent contractors. For Convention and IAA purposes only, a
supervised provider is an agency or person that is providing adoption
services under the supervision and responsibility of an accredited
agency, temporarily accredited agency, or approved person that is
acting as the primary provider in the Convention case. The term
``supervised provider'' is too deeply embedded in these regulations to
warrant devising a different term to avoid a misperception that the
term has any implications for tax purposes.
5. Comment: A commenter recommends that the regulations require
primary providers to be directly responsible for all fee issues.
Response: The Department appreciates the concern that some
supervised providers will charge additional and undisclosed fees to
prospective adoptive parent(s) when working directly with the
prospective adoptive parent(s). The regulations, as written, should
help to control this problem, because the standards in both Sec. 96.45
and Sec. 96.46 impose specific requirements for fee-related provisions
that must appear in the written agreement between the primary and
supervised provider. Section 96.46(b)(8), for example, requires that
the written agreement between the primary provider and the foreign
supervised provider specify that, if the foreign supervised provider is
billing the client(s) directly for their services, it must give the
client(s) an itemized bill of all fees and expenses to be paid, with a
written explanation of how and when such fees and expenses will be
refunded if the service is not completed, and must make any refunds
within sixty days of the completion of delivery of services.
6. Comment: Several commenters were concerned about the practices
of some foreign providers who work with birth parents in the country of
origin.
Response: Protecting the rights of birth parents to consent to an
adoption is an important principle of the Convention. The primary
responsibility for ensuring that consents have been obtained in
compliance with the Convention is on the country of origin, however,
not on the receiving country. The standards in Sec. 96.46 require
primary providers to supervise the actions of their foreign supervised
providers, including by requiring the foreign supervised provider to
adhere to the standard in Sec. 96.36(a) prohibiting
[[Page 8105]]
child buying, or, if the consents were not obtained by a foreign
supervised provider, by verifying that consents obtained by any other
foreign non-governmental provider have been obtained in accordance with
the Convention and applicable foreign law. We do not have authority,
however, to regulate foreign providers directly, and there are limits
to how much we can control the consent process abroad consistent with
the framework of the Convention. We believe the approach taken in the
regulations strikes the correct balance.
Standards for Cases in Which a Child Is Immigrating to the United
States (Incoming Cases)
Section 96.47--Preparation of Home Studies in Incoming Cases
1. Comment: One commenter requests that the regulations permit only
accredited agencies or approved persons to conduct home studies.
Response: Section 201(b) of the IAA specifically allows non-
accredited agencies and non-approved persons, known as exempted
providers, to conduct home studies, as well as child background
studies, in the United States, without being supervised. Exempted
providers may prepare home studies and child background studies without
being accredited, approved, or supervised as long as they are not
currently providing, and have not previously provided, any non-exempt
adoption services in the case. Home studies and child background
studies conducted by exempted providers must be reviewed and approved
by an accredited agency or temporarily accredited agency, however.
Because the IAA provides clear guidance on this issue, and our
regulations are consistent with the IAA, no change to the regulation is
appropriate.
2. Comment: One commenter would like the regulations to eliminate
the need for prospective adoptive parent(s) to disclose misdemeanors
that are over ten years old and that do not involve abuse. Another
commenter requests that the regulations state the length of time for
which a home study will be valid as well as describe the renewal
process for a home study. One commenter recommends that the regulations
allow any home study preparer to prepare a second home study for the
competent authority in the child's country of origin that is different
from the home study sent to DHS. The commenter notes that certain
disclosures, like medical conditions or disabilities, can put
prospective adoptive parent(s) at risk of rejection in a particular
country or origin. A commenter believes that deliberate omissions of
unfavorable information on a home study should be grounds for denial of
accreditation or approval.
Response: Although we understand the concerns of the commenters
regarding the content of home studies, we do not have the authority to
make the suggested changes in these regulations. The Department has
authority over the accreditation and approval of agencies and persons.
DHS retains the authority to determine the content of a home study for
Convention and non-Convention cases. We cannot remove requirements,
such as the required disclosures of misdemeanors, from DHS regulations
through these regulations.
These accreditation and approval regulations do not address the
length of time that a home study is valid. The length of time that a
home study remains valid is set by DHS. Therefore, we reference DHS'
regulations, 8 CFR 204.3(e), which lay out the current requirements for
a home study in intercountry adoptions. The home study requirements for
intercountry adoptions can be found on the Web site of DHS's U.S.
Citizen and Immigration Services, at http://www.uscis.gov.
As for the issue of preparing two home studies--one for the DHS
process and one for the country of origin--under Sec. 96.47(d) the
preparation of two different home studies is not permitted. The United
States will base its Convention Article 5(a) determination about the
suitability of the prospective adoptive parent(s) in reliance on a home
study. We believe it would be inappropriate for the United States to
support a process whereby the receiving country would make that
determination based upon one home study and then have the country of
origin's decision based upon a different home study.
3. Comment: A commenter is concerned about the disclosure of
criminal history information to individuals not currently authorized
under State law to conduct criminal background checks for home studies.
It requests clarification that only individuals authorized under State
law can conduct criminal history background reviews.
Response: Sections 96.47(b) and 96.47(c)(1) require that home
studies must be performed in accordance with 8 CFR 204.3(e) and
applicable State law. Therefore, only individuals authorized under
State law may conduct criminal history background reviews for a home
study. See comment 9 on Sec. 96.35, for further discussion of this
issue.
4. Comment: One commenter believes that the Interstate Compact on
the Placement of Children (ICPC) needs to be addressed in the
regulations concerning home studies.
Response: We have chosen not to add compliance with the ICPC as a
specific standard. To the extent ICPC requirements relevant to
intercountry adoptions are incorporated into applicable State law,
agencies and persons will be required to comply with them.
Section 96.48--Preparation and Training of Prospective Adoptive
Parent(s) in Incoming Cases
1. Comment: One commenter states that the regulations should
clarify that only agencies or persons--not prospective adoptive
families--have the authority to decide whether prospective adoptive
parent(s) should be available for the exemption from training outlined
in Sec. 96.48(g). Another commenter supports the ability of parents
who have adopted before to ``opt-out'' of the training. Other
commenters believe that families should not be exempted from all the
training.
Response: We have changed the language of Sec. 96.48(g) to clarify
that it is the agency or person that determines whether prospective
adoptive families can be exempted from the training. We expect agencies
and persons to comply with Sec. 96.48(g) and to evaluate prospective
adoptive parent(s) to assess whether they have received adequate prior
training or have prior experience as parent(s) of children adopted from
abroad.
2. Comment: Many commenters express support for mandatory training
for prospective adoptive parent(s), including the variety of training
methods that are provided for by the regulations. One commenter
recommends a minimum of twenty hours of pre-adoptive training for
adoptive families. Other commenters believe pre-adoption training for
prospective adoptive families should be voluntary. They are concerned
about any additional costs or burdens to prospective adoptive
parent(s). Some commenters recommend that training of prospective
adoptive families should be interactive and not rely solely on videos,
computers, or other distance learning methods. Another commenter
suggests that the Department require prospective adoptive parent(s) to
participate in ``adoption playgroups,'' so that prospective adoptive
parent(s) and adoptive parents can educate each other and benefit from
each other's experience. One commenter suggests that the regulations
require agencies and
[[Page 8106]]
persons to conduct at least half of the training in person. Another
commenter requests that the regulations require an independent licensed
social worker to conduct the training.
Response: The IAA requires standards for an agency or person to
provide a training program to prospective adoptive parent(s). We
believe that Section 96.48(a)'s standard, that agencies and persons
provide at least 10 hours of training to prospective adoptive
parent(s), is appropriate and decline to change the hour requirement.
Agencies and persons can exempt parents only as provided in Sec.
96.48(g).
The standards in Sec. 96.48(d) give agencies and persons latitude
to design training sessions and materials based on the needs of the
prospective adoptive family. We are not persuaded that we should
restrict their flexibility in this regard or by requiring that only an
independent licensed social worker be permitted to conduct the
training. Finally, the IAA does not authorize the Department to require
prospective adoptive parent(s) to participate in play groups, or other
adoption support groups.
3. Comment: Several commenters remark that mandatory training
places too heavy a financial and personnel burden on small agencies or
persons. They suggest that the issues to be covered in the mandatory
training be provided during the home study process. One commenter would
like the agency or person who conducts the home study to determine how
much additional training is necessary.
Response: Section 96.48(d)(5) specifically allows an extended home
study process in cases where training cannot otherwise be provided. We
decline to change the rules to make the home study preparer determine
how many hours of additional training is necessary. Within the basic
limits set in the regulations (ten hours), we want to give agencies and
persons the discretion to make the necessary determinations about the
training needs of prospective adoptive parent(s).
4. Comment: Commenters' suggestions for additions to the required
adoptive families training curriculum include information about racial
identity issues, general parenting skills, child development, the
potential for children to have or develop mental illnesses, the risk
that children may have a communicable disease, and legal recourse for
parents after adoption. One commenter is concerned that the curriculum
will ``scare'' families away from adoption. Two commenters believe that
the curriculum needs to be tailored for each prospective adoptive
family. One commenter requests that the term ``institutionalized
children'' be replaced.
Response: We agree that the training curriculum needs to be
tailored according to the needs of the prospective adoptive family. The
additional suggested topics are generally already encompassed by the
broad list of topics that training should address in Sec. 96.48(b). We
have added some additional items that should be included in the
training required under Sec. 96.48(c), however, to ensure that the
prospective adoptive parent(s) are as fully prepared as possible for
the adoption of a particular child. Section 96.48(c)(3) now requires
parents to be counseled on any ``medical, social, background, birth
history, educational data, developmental history, or any other data
known about the particular child.''
We believe the need to ensure that families be adequately prepared
for an adoption outweighs any concern that the curriculum will
discourage families from adopting. Finally, while the term
``institutionalized children'' may carry a negative connotation, it is
used in this context to encompass the broad array of childcare centers,
programs, and institutions, such as orphanages, that are typically used
by countries of origin, not to suggest involuntary commitment to a
mental health or other facility. We decline to change the term, because
we believe it is appropriate in this context to ensure that training is
inclusive of issues related to children in a wide variety of centers,
programs, and institutions.
5. Comment: Several commenters suggest that agencies or persons
should be required to provide post-adoption training and counseling.
Response: Section 203(b)(1)(A)(iii) of the IAA requires standards
under which agencies and persons provide training programs to
prospective adoptive parent(s) before the parents travel to adopt the
child or before the child is placed with the parents. While we agree
that post-adoption training and counseling may also be very helpful for
some parents, post-adoption services are not services that are
regulated under the IAA. Thus we are not making changes in response to
these comments.
6. Comment: Two commenters would like the regulations to require
agencies or persons to offer training to birth parents in countries of
origin as well as to prospective adoptive families.
Response: Neither the IAA nor the Convention requires a receiving
country to provide training to birth parents residing in a Convention
country. Under Article 4(c)(1) of the Convention, the country of origin
is required to ensure that counseling is provided to the birth parents.
When the child is emigrating from the United States, we require
agencies and persons in Sec. 96.53 to counsel birth parents about the
effects of their consent to an adoption. We certainly encourage
agencies and persons to undertake voluntarily the task of providing
needed services to birth families in other countries of origin, if they
are permitted to do so by the country of origin. We do not believe it
would be appropriate to address such services in these regulations,
however.
Section 96.49--Provision of Medical and Social Information in Incoming
Cases
1. Comment: Many commenters maintain that the regulations require
far more medical information to be provided than can be reasonably
obtained. The commenters are concerned with overburdening and harassing
foreign orphanages and doctors to the point where they will refuse to
provide the medical information. They also worry that requesting too
much information will cause delays in the adoption process. Commenters
suggest that agencies and persons be required to use ``reasonable
efforts'' to obtain medical information on a child. Many other
commenters, however, request that the regulations force agencies and
persons to provide comprehensive medical information. They maintain
that access to accurate and comprehensive information about the child
is essential for prospective adoptive parent(s). These commenters ask
for stringent standards regarding medical and social information in
incoming cases. Still other commenters believe that the regulations as
written strike an appropriate balance between the two concerns.
Response: The Department has retained the basic structure of Sec.
96.49, but made a number of changes to specific provisions in response
to these comments. The Department recognizes that the provision of
accurate medical records on the child is one of the most important
issues facing prospective adoptive parent(s), adoptive parents, and
adoptees, but an agency or person is generally dependent upon the
country of origin to provide such information. It has tried to balance
the need for detailed and accurate medical information about a
particular child with the practical difficulties inherent in obtaining
such information in many foreign countries. The Department has
supplemented the IAA-mandated timeframes for the provision of medical
records by adding to the standard in
[[Page 8107]]
Sec. 96.49(a) that such records be provided to prospective adoptive
parent(s) as soon as possible. We have also revised and reorganized
Sec. Sec. 96.49(a) and (b) to clarify that those translations of
medical records it is practicable to provide must be provided within
the IAA-mandated timeframes.
The Department has maintained the requirements, in paragraphs (d)
and (f), that agencies and persons use reasonable efforts to provide
the required information. We have added, to Sec. 96.49(d)(2), a
provision that agencies and persons must try to obtain information on
any special needs of the child. The Department has also added a
standard to paragraph (g) calling for agencies and persons to continue
to use reasonable efforts until the adoption is finalized to secure
those medical or social records that could not be obtained previously.
Overall, the standard continues to reflect the Department's belief
that it is critical that prospective adoptive parent(s) get as much
medical information as possible, but also provides the flexibility
necessary in light of the practical problems inherent in providing
prospective adoptive parent(s) with medical records.
2. Comment: A commenter requests that the regulations more heavily
emphasize providing birth family history. It requests that the
following information on the child be included in the medical report:
birth family bio-psychosocial history, growth data, prenatal history,
development status at the time of referral, specific information on
known health risks where the child resides, any known siblings, and the
whereabouts of siblings. Another commenter requests that agencies and
persons be responsible for administering basic testing for communicable
diseases. Two commenters request that agencies and persons be required
to use standardized medical health and social history forms.
Response: The Department has amended several provisions of Sec.
96.49 to require more specific information on the child's birth
history, if available. In particular, Sec. 96.49(f)(1) now
specifically requires reasonable efforts to obtain available
information about the child's birth and prenatal history. The
Department has added a new standard, Sec. 96.49(f)(3), that requires
reasonable efforts to obtain available information about any birth
siblings, including their whereabouts, whose existence is known to the
agency or person or its supervised provider. The Department has also
revised Sec. 96.49(d)(3) to require reasonable efforts to obtain
available growth data, including prenatal and birth history, and
developmental status over time and current developmental data at the
time of the child's referral for adoption. Section 96.49(d)(4)
continues to require reasonable efforts to obtain available specific
information on the known health risks in the specific region or country
where the child resides.
The regulations do not require agencies and persons to administer
tests for communicable diseases. The Department believes that the
correct role for agencies and persons, most of whom do not have staff
with medical training, is to gather and forward as much medical and
social information about the child as is reasonably possible, not to
perform medical diagnostic tests themselves. Also, the Department is
not requiring agencies and persons to use standardized health and
social history forms. The governmental interest is in having agencies
and persons get as much information about the child's medical and
social history to the prospective adoptive parent(s) as possible, not
in the format of the information.
3. Comment: Several commenters request that agencies and persons be
granted the discretion to withdraw referrals of a child in less than a
week if necessary in order to shorten the amount of time a child spends
waiting to be adopted. They believe 48 to 72 hours is appropriate.
Other commenters suggest a three-week review period, while others
request establishing a two-week review period. In addition, several
commenters request that the regulations be modified to more
specifically lay out what ``extenuating circumstances'' would be
appropriate exceptions to the one-week review period. Others request
that the exception for ``extenuating circumstances'' be omitted.
Response: The Department has amended Sec. 96.49(k) to require the
accredited agency or approved person to give the prospective adoptive
parent(s) at least two weeks, instead of one, to review the referral.
In making this change, the Department is seeking to ensure that
prospective adoptive parent(s) have enough time to make an informed,
measured decision, using the specific medical and social history of the
child they wish to adopt, that they are capable of properly caring for
the child. We have retained the provision that permits the referral to
be withdrawn earlier, however, to provide flexibility to agencies and
persons in the rare cases in which there are extenuating circumstances
involving the child's best interests.
4. Comment: A commenter requests the inclusion of language to allow
for adoptions of children who have not been pre-identified in advance
of travel.
Response: The language of Sec. 96.49(a) reflects section
203(b)(1)(A)(i) of the IAA, which requires medical records to be given
to the prospective adoptive parent(s) no later than two weeks before
the adoption or two weeks before the date on which the prospective
adoptive parent(s) travel to the Convention country to complete all
procedures relating to the adoption, whichever is earlier. We think
this requirement is best read to apply only once a child has been
identified and matched with the prospective adoptive parent(s). Prior
to that time, there is no specific ``adoption'' contemplated, and any
travel cannot be to complete all procedures relating to a particular
adoption. We do not believe this standard was intended or must be read
to preclude adoptions of children who have not been pre-identified
prior to travel, and we do not believe it is necessary to change Sec.
96.40(a) or to add a new standard to address this issue. If the
prospective adoptive parent(s) have not been matched with a child
before arriving in the country of origin, then compliance with the
standard in Sec. 96.49 will require that medical information on the
child be provided to the prospective adoptive parent(s) either as soon
as possible after the child is identified, but no later than two weeks
before the adoption or placement for adoption, or--if a second trip is
needed to complete procedures relating to the adoption--no later than
two weeks prior to that travel, whichever is earlier.
5. Comment: One commenter requests that agencies and persons
provide a copy of the child's medical records to the prospective
adoptive parent(s) at least three weeks in advance if the record is not
a correct and complete English translation. Several commenters request
that an untranslated copy of the prospective adoptive child's medical
records be provided to the adoptive family in addition to the English
versions.
Response: The Department has amended Sec. 96.49(c) to require
agencies or persons to provide any untranslated medical reports or
videotapes or other reports to prospective adoptive parent(s). It
continues to require accredited agencies and approved persons to
provide an opportunity for the clients to arrange for their own
translation of the records, including a translation into a language
other than English, if needed.
6. Comment: Several commenters request that any information
obtained on the prospective adoptive child be obtained in accordance
with the
[[Page 8108]]
Convention country's laws and procedures.
Response: In Convention adoptions, the laws of both countries
involved must be followed. These regulations will not supersede any
applicable domestic laws of a Convention country on the collection of
information about a prospective adoptive child, as Sec. 96.49(i)
relating to videotapes and photographs of the child reiterates. We
believe this is sufficiently clear from the standards in their entirety
that no specific change is required in response to these comments.
7. Comment: A commenter believes that it is unnecessary to require
a non-medical individual to document his or her training and to
indicate whether or not he or she relied on objective data or
subjective perceptions in making a medical assessment.
Response: The Department believes that it will help the prospective
adoptive parent(s) better understand the information they are given
about a prospective adoptive child if they know both the training and
background of any person who contributed observations on the child, as
well as the basis of his or her conclusions about the child. Thus, the
Department is not deleting Sec. 96.49(e)(3). The Department has,
however, revised the standard to require that non-medical individuals
provide only information on what data and perceptions were used to draw
conclusions. The Department agrees that requiring an additional level
of specification as to whether the individual relied on objective data
or subjective perceptions in making the assessment is unnecessary.
8. Comment: Several commenters request that the standard in Sec.
96.49(e), which sets out specific requirements for medical information
provided by the agency or person, apply only if the agency or person
provides medical information that is not the medical information
provided by the Convention country to the agency or person.
Response: The Department has revised the standard at Sec. 96.49(e)
so that it applies only when the agency or person is providing medical
information other than the information provided by public foreign
authorities. We recognize that the agency or person may not be able to
insist that the public foreign authority include specific information.
In addition, the Department has added a provision to specify that, when
the agency or person is providing medical information covered under the
standard, it must make ``reasonable efforts'' to provide the specific
information required under Sec. 96.49.
9. Comment: Several commenters believe Central Authorities, rather
than the accredited agencies or approved persons, should be responsible
for providing accurate medical information.
Response: Under Article 16 of the Convention, the Central Authority
of the country of origin, or other entities authorized to perform
certain of its duties, must prepare a report on the child. This report
must include information about the child's identity, adoptability,
background, social environment, family history, and medical history
(including that of the child's family), and any special needs of the
child. The general medical history is just one component of the report.
The IAA, on the other hand, requires the Department to impose very
specific requirements regarding obtaining medical records on U.S.
accredited agencies and approved persons. The primary purpose of Sec.
96.49 is to implement the IAA requirements that agencies and persons
obtain medical records and transmit them to the prospective adoptive
parent(s).
10. Comment: Several commenters request that videotapes be required
only when it is possible to obtain them from the child's country of
origin. Two commenters believe videotapes of the child should be
translated.
Response: The Department made a series of changes to Sec. 96.49 to
clarify the requirements related to videotapes of the child. Section
96.49(k) has been modified to clarify that prospective adoptive
parent(s) must be allowed to obtain physician review of videotapes only
if such tapes are available; this provision has not been specifically
limited to videotapes obtained from the child's country of origin
because the relevant question is whether a videotape is available, not
where it is available from. The Department has also revised Sec.
96.49(i) so that it explicitly states that an agency or person must
ensure that videotapes and photographs of the child comply with the
laws of the country where taken or recorded. In addition, Sec.
96.49(c) now requires that an agency or person must provide the
prospective adoptive parent(s) with any untranslated videotapes and an
opportunity to translate any videotape that is provided.
11. Comment: Some commenters believe that a detailed summary of
medical records should normally be sufficient because original medical
records are typically voluminous. Such commenters also request that if
the prospective adoptive parent(s) have been given only a summary of
the medical records, if the summary was produced by anyone other than
the orphanage director, physician, or a person designated by the
Central Authority of the country of origin, they should also be
provided with the original medical records. Other commenters request
that Sec. 96.49(a) and (b) be replaced with language that more closely
tracks the IAA requirement for a standard that an agency or person
provide a copy of the medical records of the child (which, to the
fullest extent practicable, shall include an English language
translation of such records) on a date which is not later than the
earlier of the date that is two weeks before: (I) the adoption; or (II)
the date on which the prospective adoptive parent(s) travel to a
foreign country to complete all procedures in such country relating to
the adoption. Of particular concern was the fact that the proposed
regulation did not appear to set a timeframe for the production of an
English translation of the medical records.
Response: The Department recognizes that some medical records may,
inherently, summarize or collect information based on other medical
records, but it does not believe that the type of ``summary'' of
original medical records that the commenters propose would suffice to
meet the IAA requirement that a copy of the child's medical records be
provided. While an agency or person would not be precluded from
producing a summary of medical records on a voluntary basis for its
clients, any such summary alone would not meet the standard in Sec.
96.49(a), which requires production of a copy of the medical records.
The Department has revised and restructured Sec. Sec. 96.49(a) and
(b) to respond to the concern that the proposed rule did not set a time
frame for the production of translations. Section 96.49(a) now clearly
states that the medical records, including, to the fullest extent
practicable, a correct and complete English-language translation of
such records, must be produced within the time frames established by
the IAA.
Section 96.49(b) now clearly states that where any medical record
provided is a summary or compilation of other medical records, the
agency or person is also required to provide the underlying medical
records, if available.
12. Comment: Two commenters request that the phrase ``all available
medical records'' be substituted for the phrase ``the medical records''
in Sec. 96.49(a) and (b).
Response: The Department believes that this change is unnecessary,
because Sec. 96.49 clearly establishes that the obligation is to
provide the medical records (including any available
[[Page 8109]]
underlying medical records related to a medical record that summarizes
or compiles information), and to make reasonable and ongoing efforts to
obtain a wide range of additional medical information. Section 96.49(j)
also sets a standard prohibiting withholding, or misrepresenting, any
available medical information concerning the child.
13. Comment: A commenter requests clarification that any State
standards requiring a more timely and/or comprehensive disclosure of
medical history would continue to apply to agencies and/or persons
licensed in that State.
Response: This regulation is not intended to preempt any applicable
State standards that require more timely and/or comprehensive
disclosure of medical history.
14. Comment: One commenter believes that a U.S.-based physician
should be required to evaluate medical information. The commenter also
requests that the regulations require agencies and persons to provide a
list of capable U.S. physicians who specialize in interpreting medical
information from applicable countries of origin.
Response: Mandating that agencies and persons retain U.S. doctors
directly to review all medical records would be a major change in the
current practice of intercountry adoptions. Typically, it is the
prospective adoptive parent(s) who select and retain a U.S. physician
to complete a review and assessment of all available information on the
child. We see no reason to change this practice. The regulations
requiring advance disclosure of a child's medical information to
prospective adoptive parent(s) are designed, at least in part, to
ensure that prospective adoptive parent(s) have enough time to have the
child's records reviewed by a U.S. physician, if they choose to do so,
before they agree to adopt a particular child. While it may be helpful
for agencies and persons to provide lists of U.S. physicians who
specialize in intercountry adoptions who may be able to interpret
foreign medical records, we do not think it is necessary to proper
implementation of the Convention or IAA.
Section 96.50--Placement and Post-Placement Monitoring Until Final
Adoption in Incoming Cases
1. Comment: Two commenters maintain that sending a guardian to
bring a child from the country of origin should be an equally
acceptable alternative to prospective adoptive parent(s) traveling to
the country of origin to receive a child. They request that the words
``and, if possible, in the company of the prospective adoptive
parent(s)'' be deleted from Sec. Sec. 96.50(a) and 96.51(a), so as to
avoid the implication that use of a guardian is a less desirable
approach.
Response: Sections 96.50(a) and 96.51(a) mirror Article 19 of the
Convention, which states that Central Authorities shall ensure the
``transfer takes place in secure and appropriate circumstances and, if
possible, in the company of the adoptive or prospective adoptive
parent(s).'' The phrase, ``if possible'' provides a degree of
flexibility in cases in which travel with a properly trained escort
offers an appropriate, secure alternative for transferring a particular
child from the child's country of origin when adoptive or prospective
adoptive parent(s) are unavailable.
2. Comment: A commenter requests that the regulations specify who
will assume the costs of returning the child to the country of origin
in the case of disruption when such return is determined to be in the
child's best interests. The commenter also suggests that for adoptions
that are not finalized within a set period of time, there should be a
requirement for a decision to be made whether it is in the best
interests of the child to remain in a guardianship arrangement in the
United States or return to the country of origin. Another commenter
believes that, even if an adoption is disrupted, the child should never
be returned to his or her country of origin.
Response: The Department believes that the standards in Sec. 96.50
adequately address the responsibility for costs of returning a child to
the country of origin, in the case of a disruption. Section 96.50(f)(1)
requires that the agency or person include in its adoption services
contract with the prospective adoptive parent(s) a plan addressing who
will have legal and financial responsibility for transferring custody
in an emergency or in the case of impending disruption, and for care of
the child. The contract between the agency or person and the
prospective adoptive parent(s) should address who will assume the costs
of returning the child to his or her country of origin and who will
assume the costs of the child's care until the return is completed.
Section Sec. 96.50(f)(2) also requires that the plan address the
circumstances in which the child will be returned to the child's
country of origin, as a last resort, if that is determined to be in the
child's best interests. The Department believes that these provisions
are adequate to cover the rare case in which there is a disruption and
it is determined to be in the child's best interests to return to the
country of origin.
These regulations are not intended to change currently applicable
laws, under which a State court determines whether a placement is in
the best interests of a child before his or her adoption is finalized
in the U.S. State court. In the event that the initial placement is
found not to be in the best interests of the child, or is otherwise
disrupted, Sec. 96.50(d) and (e) of the regulation establish that the
agency or person is responsible for finding an alternate placement for
the child.
The Department has not changed the rule to prohibit the return of a
child to his or her country of origin in the case of a disruption,
because there may be instances in which such return is in the child's
best interests. Section 96.50(e)(2) makes clear that an agency or
person must obtain the agreement, in writing, of the Central Authority
of the country of origin and of the Department to any such return.
3. Comment: A commenter requests that the Department track
adoptions that are to be finalized in the United States.
Response: The tracking of intercountry adoptions is not within the
scope of these regulations on accreditation/approval. Section 102(e) of
the IAA requires the Department and DHS to jointly establish a Case
Registry of all adoptions involving immigration of children into the
United States regardless of whether an adoption occurs under the
Convention. In addition, section 104 of the IAA requires the Department
to submit an annual report to Congress that will provide information
concerning intercountry adoptions involving immigration to the United
States, including information on adoptions that are finalized in a U.S.
State court. The reporting requirements set forth in Sec. 96.43 will
assist the Department in obtaining this information and fulfilling its
reporting obligations.
4. Comment: Several commenters emphasize the importance of post-
placement monitoring. They express support for this section of the
proposed regulations. One commenter would like the regulations to
provide minimum uniform standards for post-placement monitoring.
Response: While the Department also recognizes the importance of
post-placement monitoring, the standards provided in Sec. 96.50 are
straightforward and we do not believe additional changes to the
regulations, to require additional uniformity in how post-placement
monitoring is conducted, are required.
5. Comment: Several commenters are concerned that adoptive
parent(s) will not comply with the post-placement
[[Page 8110]]
monitoring (as opposed to post-adoption monitoring) requirements. For
the protection of agencies and persons, they would like the regulations
to provide a means for securing parental compliance with post-placement
supervision. One commenter requests that the regulations require
agencies and persons to notify prospective adoptive families of the
frequency and total number of post-placement reports.
Response: These regulations include standards on post-placement
monitoring because post-placement monitoring is an adoption service
under the Convention and the IAA. Their focus is necessarily on
adoption service providers, however, not on prospective adoptive
parent(s), who the Department recognizes may choose not to cooperate
with an agency or person providing post-placement monitoring. While
these regulations do not regulate prospective adoptive parent(s)
directly, the agency or person may take into account the prospective
adoptive parent(s)' lack of post-placement cooperation in determining
whether it is appropriate to proceed to adoption.
Please note that Sec. 96.50(g) only requires that the agency or
person provide post-placement reports to the Convention country if they
are required by the Convention country, and then only until the
adoption of the child is final. Section Sec. 96.50(g)(1) of the
regulations has been revised to require that prospective adoptive
parent(s) be informed about the required post-placement reports in the
written adoption services contract prior to the referral of the child
for adoption. The Department expects such notice would include the
frequency and number of post-placement reports. We are hopeful that
this written notice will encourage prospective adoptive parent(s) to
cooperate with the agencies or persons, because all parties will want
to ensure that the adoption is finalized successfully.
Section 96.51--Post-Adoption Services in Incoming Cases
1. Comment: Several commenters are concerned that parents will not
comply with any post-adoption reporting requirements imposed by
countries of origin. Other commenters recommend that agencies and
persons be required to provide post-adoption reports. Still other
commenters recommend that agencies and persons provide post-adoption
services when the family requests such services. They suggest that
providing post-adoption services should not be voluntary.
Response: The Department recognizes that the potential for parents
not cooperating with post-adoption reporting requirements is at least
as great as the potential for non-cooperation with regard to post-
placement reporting. This issue is not appropriately addressed by
holding agencies and persons responsible in the accredition/approval
context for failing to produce post-adoption reports, however,
particularly because post-adoption reporting and other services
provided after the child's adoption are not included in the IAA's list
of adoption services that must even be provided by an accredited agency
or approved person, and because we are not regulating adoptive parents
in these regulations. While Sec. 96.51(e) of the proposed rule would
have regulated agencies and persons who voluntarily provided post-
adoption services, the Department has decided to delete the standard to
be consistent with the general approach taken in the IAA and these
regulations, of not regulating any post-adoption services.
We understand that countries of origin that require post-adoption
reports may stop working with U.S. agencies or persons or close
adoption programs to U.S. prospective adoptive parent(s) if they cannot
obtain the post-adoption reports. We anticipate that this issue will be
addressed, however, by all providers and parents working cooperatively
together in the understanding that doing so benefits all concerned,
including persons who hope to adopt in the future.
2. Comment: A commenter recommends that Sec. 96.51(a) be deleted
because it is redundant with Sec. 96.50(a). The commenter also
recommends that Sec. 96.51(c) and Sec. 96.50(c) be switched.
Response: Post-placement monitoring is the subject of Sec. 96.50,
whereas Sec. 96.51 deals with post-adoption services. Thus it is not
appropriate to switch Sec. Sec. 96.51(c) and 96.50(c), or to delete
Sec. 96.51(a). For an explanation of the differences between post-
placement monitoring and post-adoption services, please see the
response to comments on Sec. 96.2 in subpart A.
3. Comment: A commenter believes the Central Authority in the
country of origin should be notified if an adopted child is re-placed
with another family in the United States after a disruption.
Response: Section 96.50(f)(4) requires agencies and persons to
include in their written adoption services contract with the
prospective adoptive parent(s) a plan describing, among other things,
how the Central Authority of the child's country of origin and the
Department will be notified if there is a disruption in the United
States before final adoption.
4. Comment: A commenter requests that the regulations require
agencies and persons to be responsible for placement of a child within
an identified time frame after a dissolution takes place.
Response: The Department is not changing the rule to mandate that
agencies or persons take actions after a dissolution takes place.
Adoption services provided after dissolution are post-adoption
services, which are outside the scope of these regulations. While both
the IAA and the Convention contain provisions dealing with disruptions,
which occur before an adoption is finalized, neither mandates any
behavior with respect to dissolutions (other than reporting, whenever
possible). The Department has tried to be consistent in not regulating
post-adoption services in these regulations on accreditation/approval.
Therefore, Sec. 96.51(b) requires only that the agency's or person's
adoption services contracts with prospective adoptive parent(s) inform
the parents whether services will be provided if the adoption is
dissolved and, if so, include a plan describing the responsibilities of
the agency or person upon a dissolution.
We recognize that this may be unsatisfactory for State child
welfare authorities faced with finding placements for children from
dissolved intercountry adoptions. This rule is not intended to change
any applicable State child welfare or protection law, however, or any
applicable State law on the financial responsibility of parents for the
post-dissolution care of the child. We note also that section 205 of
the IAA amended section 422(b) of the Social Security Act, 42 U.S.C.
622(b) to require States to collect and report information on children
who enter into State custody because of the disruption of a placement
for intercountry adoption or the dissolution of an intercountry
adoption. Thus, it should be possible in the long run to monitor
disruptions and dissolutions and to evaluate any problems they are
creating.
Section 96.52--Performance of Hague Convention Communication and
Coordination Functions in Incoming Cases
1. Comment: A commenter believes that it is unreasonable for an
agency or person to keep the Central Authority of the Convention
country and the Department continuously informed about the adoption
process.
Response: The Department has amended Sec. Sec. 96.52(a) and
96.55(a) to clarify that an agency or person must keep the Central
Authority of the Convention country and the Department
[[Page 8111]]
informed about the adoption process only as necessary. So, for example,
if regulations outside this Part, such as visa regulations, require an
agency or person to provide information to the Department about the
completion of a particular step in the adoption process, this standard
ties the agency's or person's accreditation status to compliance with
the other regulation. We believe this clarification will reduce any
undue burden on agencies or persons.
2. Comment: A commenter suggests that Sec. 96.52(e) be deleted
because it is too vague and presents a federalism issue. Section
96.52(e) requires the agency or person to take appropriate measures to
perform any tasks in a Convention adoption case that the Department
identifies are required to comply with the Convention, the IAA, or any
regulations implementing the IAA.
Response: We have not deleted this provision because we want to
ensure that the Department can rely upon the accredited agencies and
approved persons to perform those tasks entrusted to them under the
IAA's scheme for governing Convention adoptions involving the United
States. Accredited agencies and approved persons will be notified of a
case-specific task the Department identifies as necessary. We do not
feel this section presents a federalism issue because the IAA gives the
Department broad authority over Convention implementation, including
the coordination of activities under the Convention by persons subject
to the jurisdiction of the United States. Moreover, this rule does not
direct state action. The States may continue to license agencies and
persons to perform adoption-related services; where these regulations
apply, they will be in addition to, not replacing, state regulation.
Standards for Cases in Which a Child Is Emigrating From the United
States (Outgoing Cases)
Section 96.53--Background Studies on the Child and Consents in Outgoing
Cases
1. Comment: Several commenters recommend that the regulations
require additional information to be provided in the child's background
study. Recommendations for such additions include: a psychosocial
evaluation, non-identifying medical and genetic information, the name
and contact information of the physician who performed the assessment,
and non-identifying family history. Commenters recommend that
prospective adoptive parent(s) receive a copy of the medical records of
the child prior to the adoption.
Response: The Department recognizes that providing substantial
background information on a child can be helpful for both prospective
adoptive parent(s) and children. With such information, prospective
adoptive parent(s) may better understand the needs of the child, and a
child will more likely be placed in a home where his or her needs would
be met. We nevertheless have not expanded the standard in Sec.
96.53(a). The standard is consistent with IAA which incorporates the
requirements of Convention Article 16, which requires information on
the child's identity, adoptability, background, social environment,
family history, and medical history, including that of the child's
family, and any special needs of the child. We do not believe it is
appropriate to make this standard more burdensome, but we note that any
State law requirements applicable to a child background study will
continue to apply.
While we have not changed the substantive requirements of Sec.
96.53(a), we have reorganized Sec. Sec. 96.53(a) and (b) to present
the requirements more clearly. For example, it should now be clear that
an agency or person is always responsible for ensuring that the
information listed in Sec. Sec. 96.53(a)(1)-(3) is included in the
child background study. We have also revised Sec. 96.53(b) to clarify
that a supervised provider may also prepare a child background study,
so long as any applicable review and approval requirements are met.
Section 96.53(e) requires that the U.S. agency or person send the
child background study to the Central Authority or other competent
authority or accredited bodies of the receiving country. In response to
the suggestion that the medical records of a child should be
transmitted prior to the adoption, we have added to Sec. 96.53(e)
language that makes it clear that the agency or person should take all
appropriate measures to transmit the child background study before the
child's adoption. The regulations do not prohibit a U.S. accredited
agency or approved person from also providing the child background
study to the prospective adoptive parent(s) directly, if consistent
with applicable State law and the law of the receiving country.
2. Comment: Several commenters would like the regulations to
recommend a pre-placement visit between the child and the prospective
adoptive parent(s), when the child is of appropriate age.
Response: Although we understand that a pre-placement meeting
typically makes a child feel more comfortable about the transition to
an adoption placement, the Convention and the IAA are silent on the
subject of requiring a pre-placement visit, and the Department does not
believe it is appropriate to impose such an additional requirement in
these regulations on accreditation/approval. If applicable State law
requires a pre-placement visit, then that requirement will apply to an
intercountry adoption of a U.S. child emigrating to a Convention
country.
3. Comment: Several commenters request that the minimum age for
considering the child's wishes about the adoption be changed from ten
to twelve years.
Response: The Department has changed Sec. 96.53(d) in response to
these comments, and in recognition of the fact that twelve is a widely
accepted minimum age of consent as reflected in the Uniform Adoption
Act, Sec. 2-401(c). Section Sec. 96.53 now provides that, unless
State law provides a different age, if the child is twelve or older an
agency or person must give due consideration to a child's wishes or
opinions before determining that an intercountry adoption placement is
in the child's best interest. While some State laws may be silent on
this question, we believe that most States generally require a child's
wishes must be considered at an age between 10 and 14 years.
4. Comment: A commenter recommends that the regulations require
consent from both birth parents, not just the birth mother.
Response: The Department is not changing Sec. 96.53(c) in response
to these comments, because Sec. 96.53 of the regulations reflects the
language of Article 4 of the Convention on consents. The Department
does not want to impose any requirements for consents in addition to
those required specifically under the Convention and IAA. Section
96.53(c), consistent with Article 4, requires that the consent of any
persons whose consent is necessary for the adoption has been obtained.
Accordingly, in any case in which State law requires the consent of the
birth father, in addition to that of the birth mother, Sec. 96.53(c)
would require that the consent of both birth parents be obtained.
5. Comment: One commenter would like the phrase ``takes all
appropriate measures to ensure'' found in Sec. 96.53(a) and Sec.
96.53(c) changed to ``ensures.''
Response: We have kept ``takes all appropriate measures to ensure''
in the final rule, because primary providers
[[Page 8112]]
will be working with public domestic authorities or competent
authorities who will be performing some of the tasks required under the
Convention to complete a Convention adoption. The primary provider is
not responsible for the quality of a public domestic authority's or
competent authority's services when they complete Convention tasks, as
reflected in Sec. 96.14. Because these authorities are not accountable
to the primary provider, it would be unfair to set a standard making
the primary provider responsible for their actions. Agencies and
persons are required, however, to take all appropriate measures to
ensure that Convention tasks are conducted in accordance with the
standards set forth in Sec. 96.53.
6. Comment: Several commenters recommend that the regulations
require that birth parents or other authorities whose consent is
necessary to be counseled that their consent will result in the child
living in a foreign country. They also recommend that the specific
country of destination be named during the counseling.
Response: We agree that full disclosure of the effects of consent
is important, but we are not amending Sec. 96.53(c) in response to
this comment. The purpose of Sec. 96.53(c) is to incorporate the
requirements on consents set forth in Article 4 of the Convention, not
to impose any additional specific requirements on what information must
be provided to persons or institutions whose consent must be obtained.
Article 4 of the Convention requires that the country of origin
ensure that persons whose consent is required be counseled as may be
necessary and informed of the effects of their consent, particularly
with respect to whether an adoption will result in the termination of
the legal relationship between the child and the birth family. The
Convention language does not contain any additional specific
requirements regarding the contents of the counseling, and the relevant
IAA provision simply states that State courts with jurisdiction over a
Convention adoption must be satisfied that the agency or person
complied with Article 4.
Where applicable State laws establish more specific requirements
about the contents of counseling, the agency or person will have to
comply with these laws in addition to the IAA. Moreover, Sec. 96.54(d)
specifically provides that, if State law requires, agencies and persons
must disclose to birth parents that the child will be adopted by
parents who reside outside of the United States.
Because the Department does not intend to create Federal consent
requirements beyond those required under the Convention and applicable
State law, we have removed from Sec. 96.53(c)(5) the specific
requirement that a child be counseled and duly informed that his or her
consent would result in the child living in another country.
Section 96.54--Placement Standards in Outgoing Cases
1. Comment: Numerous commenters would like the regulations to make
it more difficult to place U.S. children abroad. Some commenters
suggest that agencies and persons should be prohibited altogether from
placing children who are born in the United States for intercountry
adoption. Other commenters agree that U.S. children may be placed
overseas, but think that the standard requiring reasonable efforts to
find a timely adoptive placement for the child in the United States is
too vague. Another commenter notes that not all children adopted from
the United States will be infants, and asks whether children who are
not newborns are required to be placed on a registry for a specific
period of time. Other commenters request that the length of time of
listing on an adoption exchange or registry be changed from thirty to
sixty days.
Response: There is no basis in the Convention or the IAA for
prohibiting U.S. children from participating in intercountry adoption.
The Convention explicitly recognizes that intercountry adoption may
offer the advantage of a permanent family to a child for whom a
suitable family cannot be found in his or her country of origin.
Article 4 of the Convention states that, after possibilities for
placement within the country of origin have been given ``due
consideration,'' competent authorities may determine that intercountry
adoption is in the child's best interests.
Accordingly, section 303(a)(1) of the IAA requires that an
accredited agency or approved person ensure that, in a Convention
adoption involving emigration from the United States, ``it has made
reasonable efforts to actively recruit and make a diligent search for
prospective adoptive parent(s) to adopt the child in the United
States,'' and that ``despite such efforts, it has not been able to
place the child for adoption in the United States in a timely manner.''
In furtherance of section 303(a)(1), Sec. 96.54(a) provides guidance
to agencies or persons on how to satisfy the ``reasonable efforts''
standard. Except in special circumstances, to demonstrate that the
reasonable efforts standard has been met, an agency or person is now
required by Sec. Sec. 96.54(a)(1) through (4) to: (1) disseminate
information about the child and the child's availability for adoption
through print, media, and internet resources designed to communicate
with potential U.S. prospective adoptive parent(s); (2) list
information about the child on a national or State adoption exchange or
registry for at least sixty calendar days after the birth of the child;
(3) respond to inquiries about adoption of the child; and (4) provide a
copy of the child background study to potential U.S. prospective
adoptive parent(s).
Note that, in response to several comments, the time period set out
in Sec. 96.54(a)(2) for listing a child on a national or State
adoption exchange or registry has been increased from thirty days to
sixty days after the birth of the child. We believe this additional
time will help ensure that reasonable efforts are taken to place the
child within the United States, without unduly delaying an intercountry
adoption if one proves to be in the best interests of the child. This
time period remains sufficiently short to avoid harming a child by
keeping it on a registry for an excessive period of time (a concern
expressed by some adoption experts who testified before Congress during
consideration of the IAA).
Note also that the requirement to be registered for ``at least
sixty days after the birth of the child'' applies both to newborn
children and to older children. That is, every child must be listed for
at least sixty days. The limitation of ``after the birth of the child''
is intended to preclude listing children before they are born.
2. Comment: Some commenters recommend that children emigrating from
the United States be provided with assurances of citizenship in their
adopted countries.
Response: The Department cannot control how Convention countries
will apply their citizenship laws. Article 5 of the Convention
provides, however, that a Convention adoption may proceed only after
the competent authorities in the receiving country determine that the
child is or will be authorized to enter and reside permanently there.
Consistent with this requirement, Sec. 96.55(d)(4) requires U.S.
agencies or persons to transmit or provide to State courts evidence
that the child will be authorized to enter and reside permanently (or
on the same basis as that of the prospective adoptive parent(s)) in the
receiving country.
3. Comment: Certain commenters believe that the regulations should
mandate that receiving countries other
[[Page 8113]]
than the United States provide post-adoption services.
Response: Article 9 of the Convention requires each country to
promote post-adoption services, but there is no requirement in the
Convention that case-specific post-adoption services be provided in a
receiving country. The availability of these services will be
determined by the receiving country, its adoption service providers,
and its law. The Department does not have the authority to impose such
a requirement on Convention countries.
4. Comment: One commenter would like the regulations to address
access to and retention of records in the receiving Convention country
about U.S. children placed in that country.
Response: The Department has no authority to impose such a
requirement on a receiving country. Access to and retention of records
held in a Convention country will be governed by the laws of that
country.
5. Comment: One commenter questions the authority of the Department
to create or to impose on States any ``preference'' with regard to
``best interests of the child'' in the standards.
Response: The Department does not intend in this rule to create or
impose new ``preferences'' that would influence States concerning the
best interests of the child standard. Section 96.2, in defining ``Best
interests of the child'' for the purposes of this part, specifically
states that the term shall have the meaning given to it by the law of
the State with jurisdiction to decide whether a particular adoption or
adoption-related action is in the child's best interests. In this
context, the standards require that an agency or person must determine
that a placement is in a child's best interests, consistent with
applicable State law on best interests of the child. Ultimately, it is
up to the State court with jurisdiction to determine if the
intercountry adoption meets all State law requirements and any
applicable Convention and IAA requirements.
6. Comment: A commenter asks where the Department finds authority
to mandate that the agency or person use ``diligent efforts to place
siblings together.''
Response: Consistent with our general approach of not creating new
Federal requirements for Convention cases involving U.S. children where
there is not specific language in the Convention or the IAA, and in
response to this comment, we have modified the standard at Sec.
96.54(c)(2) to require that agencies and persons make diligent efforts
to place siblings together ``to the extent consistent with State law.''
7. Comment: Several commenters request that the U.S. accredited
agency or approved person be informed if there is a disruption in an
outgoing case. They also request that the standard address who will pay
for the child's transportation back to the United States if returning
the child is determined to be in the child's best interests.
Response: The Department expects that an agency or person will
typically remain in contact with the relevant entities in the receiving
country as a result of its compliance with the standards set forth in
Sec. Sec. 96.54(i)-(k), and therefore will likely be aware of any
disruption. Article 21 of the Convention gives, however, the Central
Authority of the receiving country the primary responsibility for
determining when an adoptive placement is not in the best interests of
the child. If the Central Authority of the receiving country or, where
appropriate, another entity performing its duties, determines that
continued placement of a child with the prospective adoptive parent(s)
is not in the child's best interests, it will have a number of
responsibilities to protect the child. For example, the Central
Authority, or other entity performing its duties, will have to arrange
for the child to be removed from the prospective placement and will
have to arrange temporary care; and, in consultation with the Central
Authority of the country of origin (the Department) or, as appropriate,
other entities performing U.S. Central Authority duties under the
Convention, it will have to arrange for a new placement in the
receiving country. If it cannot find an alternative placement, the
Central Authority, or other entity performing its duties, as
appropriate, must arrange for the return of the child to the United
States. Section 96.54(k) requires that the agency or person consult
with the Department before it arranges any return to the United States
of any child who has emigrated in connection with a Convention
adoption, and the Department anticipates that it will consult with the
relevant agency or person, as appropriate, in any instance in which it
learns of contemplated arrangements for return that do not already
involve the agency or person.
Under the Convention, returning a child to the country of origin is
a last resort. The child may still be a U.S. citizen and could be
eligible for the Department to pay for his or her transportation
expenses through the Department's loan repatriation program (for more
information go to http://travel.state.gov/law/overseascitizens.html).
Otherwise, the cost of returning the child to the United States may
depend on what person or entity has legal custody or guardianship of
the child.
8. Comment: Several commenters recommend that the home studies for
prospective adoptive parent(s) of children emigrating from the United
States include the same information that is required in Sec. 96.47(a)
of the regulations for home studies involving immigrating children.
Response: The Department is not making any change in response to
these comments. The contents of a home study in an outgoing case under
the Convention will be determined by the law of the receiving country
and the law of the U.S. State where the adoption is proceeding.
9. Comment: Two commenters recommend that Sec. 96.54(b) include
language that specifies not merely that a timely placement was sought,
but that a qualified adoptive placement was sought.
Response: The Department recognizes that locating a qualified
placement is as important as finding a placement quickly. We have
changed Sec. 96.54(b) to state that efforts must be made to find a
timely and qualified adoptive placement.
10. Comment: One commenter requests that a ``relative'' be defined.
It believes that if ``relative'' is not spelled out clearly, the
exception in Sec. 96.54(a) from efforts to find a timely adoptive
placement in the United States for adoptions by relatives will be
subject to abuse.
Response: The State court that has jurisdiction over an
intercountry adoption will look to its own State law to determine
whether it is satisfied that reasonable efforts have been made to find
a U.S. placement. Accordingly, we do not believe it is necessary to
provide a definition of ``relative'' in these regulations in order to
deter abuse of this exception.
11. Comment: Several commenters recommend the elimination of the
exception to reasonable efforts provided in Sec. 96.54(a), which
allows birth parents to identify specific adoptive parents. Other
commenters would like the birth parents to have more input on who
adopts their child.
Response: We have not made changes in response to these comments,
other than to clarify, in Sec. 96.54(b), that the standard does not,
in fact, provide an exception to the ``reasonable efforts'' rule;
rather it provides exceptions to the prospective adoptive parent
recruiting procedures set forth in Sec. 96.54(a)(1)-(4), thereby
recognizing that in some cases,
[[Page 8114]]
``reasonable efforts'' can include no efforts at all, if no such
efforts are in the child's best interests. The regulations also permit
a State court to accept or reject an accredited agency's or approved
person's recommendation that it is not in the best interests of a
particular child that the procedures set forth in Sec. 96.54(a)(1)-(4)
be followed. This approach is fully consistent with the Convention,
which requires merely that ``due consideration'' be given to placing
the child in the United States, as well as with the IAA.
On the question of birthparent preferences, the rule aims for
consistency with current practices under State law, by allowing birth
parents to select among prospective adoptive parent(s), so long as
State law permits them to do so. Some birth parents may prefer that
their child be placed with a relative in another country who has the
capacity to provide suitable care for the child. Other birth parents
may prefer a non-relative placement abroad. Nothing in the Convention
or the IAA warrants taking a course different from applicable State law
on the question of birthparent preferences.
12. Comment: One commenter seems to believe that the accreditation/
approval standards may give the misleading impression that it will be
an accredited agency or approved person who will decide the fate of
outbound children when, in actuality, it will be done by State courts.
Response: It is correct that the State courts, not agencies or
persons, will decide whether an outgoing adoption complies with
applicable provisions of the Convention, the IAA, and State law, and
thus may proceed. These standards apply to agencies and persons,
however, and as such address Convention tasks that may be required of
an agency or person. Such tasks may include gathering information and
submitting it to the court in outgoing cases, in which case the agency
or person must submit information to the State court that satisfies the
Convention and IAA requirements.
Section 96.55--Performance of Hague Convention Communication and
Coordination Functions in Outgoing Cases
Comment: A commenter requests clarification that nothing precludes
access to adoption process information by a State licensing authority
to the extent otherwise authorized by State law.
Response: The commenter is correct. Nothing in the Convention, the
IAA, or this part is meant to preclude a State licensing authority from
obtaining information to the extent permitted or required under the
State law of the licensing authority.
Subpart G--Decisions on Applications for Accreditation or Approval
Subpart G is organized in the same way as in the proposed rule, and
includes Sec. 96.57 (Scope); Sec. 96.58 (Notification of
accreditation and approval decisions); Sec. 96.59 (Review of decisions
to deny accreditation or approval); Sec. 96.60 (Length of the
accreditation or approval period); and Sec. 96.61 (Reserved).
As discussed below, Section 96.60(b) has been modified to allow the
accrediting entity more discretion.
Section 96.59--Review of Decisions To Deny Accreditation or Approval
Comment: Two commenters believe that the Department should revise
Sec. 96.59 to provide a right of administrative review of denied
applications for accreditation or approval. One commenter states that
such review is particularly necessary for the initial implementation
period.
Response: The Department is not revising Sec. 96.59 in response to
these comments, because denial of accreditation or approval is not
included as an adverse action under section 202(b)(3) of the IAA and is
therefore not subject to a right of judicial review or administrative
review. The Department notes, however, that Sec. 96.59(b) permits the
agency or person to petition the accrediting entity for reconsideration
of the denial, pursuant to the accrediting entity's internal review
procedures. For further discussion of this issue, please refer to
Section IV, C, paragraph 11 of the preamble for the proposed rule,
published at 68 FR 54064, 54087.
Section 96.60--Length of Accreditation or Approval Period
1. Comment: Two commenters request that the regulations state that
the fees for accreditation and approval will be adjusted to reflect
whether an agency or person is accredited or approved for three or five
years, instead of four.
Response: The Department agrees that the length of the
accreditation or approval period is a factor that an accrediting entity
may consider when setting its fees, but because the fee schedules are
not included in these regulations the Department is not making any
change in response to this suggestion. Please see the comments on Sec.
96.8 for discussion of accrediting entity fees.
2. Comment: Two commenters support the ability of accrediting
entities to vary the length of accreditation periods, and request that
the Department allow agencies and persons to volunteer to become
initially accredited or approved for other than four years.
Alternatively, the commenters request that the Department require
accrediting entities to choose which agencies or persons will be
accredited or approved for other than four years by a random process.
Response: The criteria for choosing which agencies and persons will
be accredited or approved for a period of other than four years will be
established by the accrediting entities and approved by the Department.
The Department believes that the accrediting entities will have the
expertise to decide the appropriate criteria to make such
determinations, and that the Department should not attempt to
predetermine how such decisions are made. For example, it is unclear
whether the wishes of the agency or person should be given weight,
whether the process should be random, or whether the period should
reflect the degree to which the agency or person demonstrates
``substantial compliance.'' Thus, we have not changed the regulation to
include such criteria. In addition, the Department has modified Sec.
96.60(b) to remove the requirement that accrediting entities consult
with the Department before deciding the exact period for which a
particular agency or person will be accredited or approved in the first
accreditation or approval cycle. We believe that this approach will
improve the efficiency of the accreditation process.
Subpart H--Renewal of Accreditation or Approval
Subpart H is organized in the same way as in the proposed rule, and
includes Sec. 96.62 (Scope); Sec. 96.63 (Renewal of accreditation or
approval); and Sec. 96.64 (Reserved).
Section 96.63 has been revised in response to comments, discussed
below, and Sec. 96.63(a) has been revised to clarify that, while the
accrediting entity will tell accredited agencies and approved persons
it monitors of the date by which they should seek renewal, it is the
accredited agency's or approved person's responsibility to seek renewal
in a timely fashion.
Section 96.63--Renewal of Accreditation or Approval
1. Comment: A commenter requests that the Department add
``probation'' to Sec. 96.63 as another status for an applicant. The
commenter suggests that
[[Page 8115]]
this status could last for up to nine months after the expiration of an
accreditation or approval period and provide accredited agencies or
approved persons a period within which to correct any deficiencies in
their compliance with the standards of subpart F.
Response: We have not added the status of ``probation'' to the rule
because it is not a concept used in the IAA. We believe, however, that
the rule already addresses the commenter's concern, to the extent that
Sec. 96.63(c) provides that an accrediting entity may defer its
renewal decision in order to give an accredited agency or approved
person notice of any deficiencies and an opportunity to correct them
before the accrediting entity decides whether to renew the
accreditation or approval.
2. Comment: A commenter asserts that the focus of accrediting
entities in renewal applications should be on an agency's or person's
performance, rather than on merely reviewing documents.
Response: The Department has revised Sec. 96.63(d) to incorporate
specifically into renewal procedures the provisions of Sec. 96.24,
relating to procedures for evaluating applicants for accreditation or
approval. Section 96.24 provides that accrediting entities may conduct
interviews, as well as document reviews, during site visits. Thus, an
accrediting entity's renewal evaluation of an accredited agency or
approved person, like its initial evaluation, may include both document
review and interviews. See also the discussion of this issue in
response to comments on Sec. 96.27. The Department also notes that
Sec. 96.27(b) requires an accrediting entity to consider an accredited
agency's or approved person's actual performance, for the purposes of
renewal, in deciding whether the agency or person is in substantial
compliance with the standards in subpart F.
Subpart I--Routine Oversight by Accrediting Entities
Subpart I is organized in the same way as in the proposed rule, and
includes Sec. 96.65 (Scope); Sec. 96.66 (Oversight of accredited
agencies and approved persons by the accrediting entity); and Sec.
96.67 (Reserved).
Section 96.66 has been revised in response to comment, as discussed
below.
Section 96.66--Oversight of Accredited Agencies and Approved Persons by
the Accrediting Entity
1. Comment: A commenter recommends that the Department clarify the
duties of accrediting entities to monitor accredited agencies or
approved persons annually. Specifically, the commenter states that the
Department should specify that accrediting entities will monitor
substantial compliance based on a weighting and rating system.
Response: The Department believes that this is addressed in the
rule, as Sec. 96.66(a) provides that an accrediting entity must
monitor accredited agencies and approved persons at least annually to
ensure that they are in substantial compliance with the standards in
subpart F, as determined using a method approved by the Department in
accordance with Sec. 96.27(d).
To further strengthen the accrediting entity's oversight, however,
the Department has added Sec. 96.66(c), under which an accrediting
entity must require accredited agencies and approved persons to attest
annually that they have remained in substantial compliance and to
provide supporting documentation to indicate ongoing compliance with
the standards in subpart F. Any other additional specifications related
to the annual monitoring duties of accrediting entities will be
detailed in the agreement between the accrediting entity and the
Department.
2. Comment: A commenter requests that the Department add to subpart
I a system for oversight of accredited agencies and approved persons
through a complaint system. The commenter also notes the importance of
oversight through the investigation of complaints.
Response: Oversight through review of complaints is primarily
addressed in subpart J of this rule. Section 96.66(a) provides that the
accrediting entities must investigate complaints about accredited
agencies and approved persons, as provided for in subpart J. Also, the
accrediting entities are authorized by Sec. 96.66(b) to conduct
unannounced site visits at an accredited agency's or approved person's
premises for the purposes of investigating a complaint against an
accredited agency or approved person. Therefore, we did not make any
additional modifications to subpart I.
3. Comment: A commenter states that the oversight provisions of the
regulations should focus on checking the performance of agencies and
persons through interviews with clients and personnel, rather than
simply reviewing documents.
Response: This comment is very similar to the comment on Sec.
96.63 with respect to procedures for renewals of accreditation and
approval, and to comments on Sec. 96.27. Section 96.27(b) applies to
accrediting entity oversight and requires an accrediting entity to
consider an accredited agency's or approved person's actual
performance, for the purposes of monitoring and enforcement, in
deciding whether the accredited agency or approved person is in
substantial compliance with these regulations. Therefore the Department
does not believe it is necessary to revise the rule to respond to this
concern.
4. Comment: One commenter suggests that each agency or person be
required to provide a representative with whom the accrediting entity
can have ongoing communications about compliance with accreditation
standards.
Response: The Department agrees that it will be important for
accrediting entities to have clear channels of communication with
accredited agencies and approved persons, but does not believe this
must be addressed in the rule. The Department intends to allow
accrediting entities and accredited agencies and approved persons to
set up day-to-day communication procedures that work for them.
5. Comment: A commenter states that accrediting entities should not
conduct investigations. It believes that allowing them to perform
investigations will result in a situation similar to the problems
currently facing State licensing authorities, which it believes do not
have sufficient legal authority or personnel to do appropriate
investigations.
Response: The Department is taking no action in response to this
comment. Section 202(b)(2) of the IAA clearly gives accrediting
entities the responsibility for ongoing monitoring of accredited
agencies and approved persons, including review of complaints, and the
Department believes enough ``checks'' and funding are built into the
accreditation system to ensure that accrediting entities will conduct
properly any necessary and appropriate investigations of accredited
agencies and approved persons. If the Department finds that an
accrediting entity is failing to monitor adequately accredited agencies
or approved persons, the Department may suspend or cancel the
accrediting entity's designation under Sec. 96.10. Further, the
Department, under Sec. 204(b)(1) of the IAA, must take adverse action
when an accrediting entity fails or refuses to act after consultation
with the Department and the accredited agency or approved person is not
in substantial compliance with the standards in subpart F. In this
auxiliary role, the Department may undertake any necessary additional
investigation to determine if adverse action is warranted. Finally, the
[[Page 8116]]
Department notes that issues involving violations of law will properly
be referred by the accrediting entity to appropriate law enforcement
entities.
Subpart J--Oversight Through Review of Complaints
Subpart J is organized in the generally same way as in the proposed
rule, although the titles and content of some of the provisions of the
final rule have been revised to more accurately convey the allocation
of responsibilities and procedures for complaint review. Subpart J
includes Sec. 96.68 (Scope); Sec. 96.69 (Filing of complaints against
accredited agencies and approved persons); Sec. 96.70 (Operation of
the Complaint Registry); Sec. 96.71 (Review by the accrediting entity
of complaints against accredited agencies and approved persons); Sec.
96.72 (Referral of complaints to the Secretary and other authorities);
and Sec. 96.73 (Reserved).
Section 96.68 has been revised to explain the types of complaints
that accrediting entities will process against accredited agencies and
approved persons. Section 96.69 has been revised to simplify the
description of the process for filing complaints against accredited
agencies and approved persons, and to clarify what types of individuals
may file complaints through the Complaint Registry or otherwise.
Section 96.70, on the operation of the Complaint Registry, has been
revised to better convey the functions that this system will be able to
perform with respect to complaints. These and other changes are
discussed below, and at section III, subsection C of the preamble,
above.
Section 96.68--Scope
1. Comment: One commenter believes that the Department treats
complaint review as a matter of private dispute resolution, when it
should focus, instead, on the fundamental public interests involved.
The commenter suggests that the Department add a new section to subpart
J clarifying that the Department has a non-delegable responsibility to
investigate issues of fundamental public interest related to
intercountry adoptions.
Response: The IAA creates a regulatory scheme where accrediting
entities have primary responsibility for monitoring the actions of
accredited agencies and approved persons, while the Department is
responsible for overseeing the accrediting entities. Although a
Complaint Registry is not required by the IAA, the Department has
provided for the Complaint Registry in a manner consistent with this
overall framework. Thus, these regulations provide for a complaint
process that will ensure that most unresolved problems with accredited
agencies or approved persons get reported to, and investigated by, the
accrediting entities. If the accrediting entity fails to act, the
Department will investigate, as appropriate, and determine if adverse
action is warranted. The Complaint Registry will assist the Department
in monitoring whether the accrediting entity is taking action as
appropriate. The Department has added a provision at Sec. 96.70(e)
that makes clear that the Department retains authority to take any
action the Department deems appropriate with respect to complaints.
Section 96.69--Filing of Complaints Against Accredited Agencies and
Approved Persons
1. Comment: Two commenters suggest that complaints governed by this
subpart should relate only to Convention adoptions and not to other
adoption services provided by an agency or person.
Response: The Department agrees that the scope of this subpart
should be so limited, and has modified Sec. 96.68, the scope of
subpart J, to clarify that the procedures described therein only apply
to complaints that raise an issue of compliance with the Convention,
the IAA, or the regulations implementing the IAA.
2. Comment: Two commenters recommend that the Department narrow the
types of complaints that can be filed with the Complaint Registry or
with accrediting entities. In particular, one of the commenters asks
that the regulations not permit a complaint to be filed with the
Complaint Registry merely because it cannot be resolved with the
agency, because this would transform an accrediting entity into an
appeal board. The commenter recommends that a complainant be required
to seek out alternative resolutions, including arbitration and appeals,
before filing a complaint with the Complaint Registry.
Response: The complaint system established by these regulations
will allow individuals to file complaints with the Complaint Registry
if they are dissatisfied with the resolution of their complaints by the
agency or person. This does not, however, preclude the agency or person
from offering appeals or other dispute resolution procedures, and
clients will be free to pursue such procedures before filing a
complaint with the Complaint Registry if they wish. In addition, while
resort to the Complaint Registry will require the accrediting entity to
investigate the complaint, this may allow accrediting entities to
become aware of problems at an earlier stage than they would otherwise,
in turn lessening the need for accrediting entities to take adverse
actions, improving performance by accredited agencies and approved
persons, and promoting greater compliance with the Convention, the IAA,
and these regulations. Thus, we are not making the suggested changes.
3. Comment: Several commenters think that individuals who wish to
file a complaint against an accredited agency or approved person should
be able to make their complaint directly to the Complaint Registry
without first having to attempt resolution with the agency or person
itself. Commenters fear that an accredited agency or approved person
might try to dissuade individuals from filing a complaint or take
retaliatory actions against them if they complain. One commenter
expresses concerns regarding how the prohibition on retaliatory action
toward a prospective adoptive family will be monitored and over whether
prospective adoptive parent(s) that file complaints will still be
treated unfairly by an agency or person.
Response: The complaint procedures outlined in these regulations
include several levels of review that should ensure that individuals
who file complaints are treated fairly. If an agency or person takes
any action to discourage a client or prospective client from making a
complaint or retaliates against a client for making a complaint, the
agency or person will not be in substantial compliance with Sec.
96.41(e). The accrediting entities will monitor the compliance of
accredited agencies and approved persons with this standard. The
accrediting entities, therefore, will be a check against retaliatory
action toward a complainant. The Department will act as another check
against unfair treatment of complainants by an agency or person. At
each level of review, an agency or person risks losing its
accreditation or approval if it takes steps to retaliate against
complainants. There are enough safeguards built into the complaint
system that it is not necessary to change the requirement that
complaints must first be filed with the agency or person.
4. Comment: Several commenters believe that Sec. 96.41 of the
proposed rule would limit use of the Complaint Registry to birth
parents, adoptive parents, and adoptees, and recommend that the
complaint process be expanded to allow other interested parties, such
as health practitioners, social workers, mental health providers, and
non-governmental organizations (NGOs), to
[[Page 8117]]
file a complaint directly with the Complaint Registry or the
Department.
Response: Section 96.41 governs complaints to an agency or person,
not complaints to the Complaint Registry. If any individual is not
satisfied with the resolution of his or her complaint by an accredited
agency's or approved person's internal complaint procedure, then he or
she may file a complaint with the Complaint Registry. The Department
has added a new Sec. 96.69(c), however, to allow an individual who is
not party to a specific Convention adoption case, but who nonetheless
has information about an agency or person, to complain directly to the
Complaint Registry.
5. Comment: One commenter is concerned that the complaint
procedures of subpart J do not establish a workable system for the
filing, investigation, and resolution of complaints against agencies
and persons. The commenter suggests that the Department specify the
process for the timely investigation and resolution of complaints and
further requests that agencies and persons have the opportunity to
present evidence and receive proper notice of pending complaints
against them.
Response: Subpart J outlines the general process for making,
investigating, and resolving complaints about accredited agencies and
approved persons. Each accrediting entity will be responsible for
establishing written procedures for recording, investigating, and
acting upon complaints, that are consistent with this subpart. The
accrediting entity's procedures must be approved by the Department.
Accrediting entities will make information about their Department-
approved complaint procedures available upon request, and the
Department will post information about using the Complaint Registry on
the Department's Web site.
6. Comment: A commenter suggests that the Department establish a
neutral fact-finding tribunal to investigate and document alleged
adoption abuses and to implement the Convention as a mechanism to
resolve complaints and disputes between party countries.
Response: With regard to alleged adoption abuses by agencies and
persons, the courts will serve as a ``neutral tribunal'' for
determining whether adverse actions are appropriate. With regard to
disputes with other countries, the Department, as Central Authority,
will address them as appropriate; the mechanisms for resolving such
issues through diplomacy are outside of the scope of these regulations.
The Department will use information collected by the Complaint Registry
in the course of its ongoing diplomatic relations with Convention
countries.
Section 96.70--Review of Complaints About Accredited Agencies and
Approved Persons by the Complaint Registry
1. Comment: A commenter requests further clarification on the
proposed Complaint Registry. The commenter believes that effective
complaint mechanisms rely on clearly delineated serial escalation
structures, where complainants, agencies/persons, or regulators may
appeal to successively higher levels of administrative (and where
applicable) judicial review. Other commenters support the complaint
procedure as written.
Response: The Department agrees that effective complaint mechanisms
require multiple levels of review. These regulations outline a process
by which complainants involved in specific cases must file their
complaints against an agency or person with that agency or person. If
the complaint cannot be resolved through the agency's or person's
internal complaint process, the complainant may file a complaint with
the accrediting entity through the Complaint Registry pursuant to Sec.
96.70. The Complaint Registry will make complaints available to the
accrediting entity and to the Department. If an accrediting entity's
investigation reveals that an agency or person is not in substantial
compliance with these regulations, the accrediting entity can take an
adverse action. The Department may suspend or cancel the accreditation
or approval if it finds that an agency or person is substantially out
of compliance with the standards in subpart F and that the accrediting
entity has failed or refused, after consultation with the Department,
to take action. We believe that these complaint procedures and
enforcement steps provide enough levels of review to allow appropriate
``escalation'' and to enforce IAA compliance without being unduly
cumbersome or too slow.
2. Comment: A commenter recommends that a complainant who is
unsatisfied with the outcome of his or her complaint after a period of
30 days be permitted to file directly with the Complaint Registry. The
commenter also recommends amending the provisions to allow a
complainant to file with the Complaint Registry if a dispute has not
been resolved within 60 days, or some other established time limit
sufficient to weed out frivolous complaints and to address complaints
that can be resolved amicably. Another commenter also stresses the
importance of timeliness in the complaint process. One commenter is
concerned that the proposed grievance procedure will be ``ineffectual,
inadequate and self-interested,'' because the agencies and persons have
no viable history of handling grievances in a timely and responsible
manner.
Response: The Department has established complaint procedures and
standards because of expressed concerns that some agencies and persons
have not handled complaints effectively. Pursuant to Sec. 96.41(c),
all accredited agencies and approved persons must respond in writing to
complaints within 30 days of receipt and must provide expedited review
of complaints that are time-sensitive or that involve allegations of
fraud. If the complaint cannot be resolved through the agency's or
person's internal complaint process, then the complainant may file a
complaint with the accrediting entity through the Complaint Registry.
Also under Sec. 96.69(b), if the complaint was resolved by an
agreement to take action, but the primary provider, agency, or person
failed to take the promised action within thirty days of agreeing to do
so, the complaint may be filed with the accrediting entity through the
Complaint Registry. Finally, Sec. 96.71 also requires that the
accrediting entity maintain procedures, including deadlines, for taking
action upon complaints it receives from the Complaint Registry. This
approach should be given a chance to work before further, more onerous,
requirements are imposed on the assumption that agencies and persons
will not resolve complaints efficiently and effectively.
3. Comment: A commenter requests that the Department adopt
safeguards to screen out spurious or malicious complaints and to
protect against manipulation of the complaint process.
Response: The Department believes that the constraints on filing
complaints with accrediting entities will serve this safeguard
function. In addition, once an accrediting entity receives a complaint
from the Complaint Registry under Sec. 96.70(b)(1), it will have
authority to address spurious or other meritless complaints
appropriately, and will share information publicly only about
complaints against agencies or persons that have been substantiated,
pursuant to Sec. 96.92(a).
4. Comment: A commenter supports the creation of the Complaint
Registry. It encourages the Department to consider following Norway's
example by making the Complaint Registry an ombudsman service.
[[Page 8118]]
Response: The United States has followed a different model for
implementation of the Convention, with the Department and accrediting
entities having functions as provided in the IAA. The Complaint
Registry is consistent with that structure.
5. Comment: One commenter thinks that the Complaint Registry should
be easily accessible to potential complainants by telephone, postal
mail, or electronic mail. Another commenter suggests the Complaint
Registry should be available online.
Response: The Department agrees that it is important that the
Complaint Registry be easily accessible to potential complainants as
well as efficient, but also believes that the individuals making
complaints must also be held initially responsible for making them in
writing, not over the telephone. While the administrative details on
how to access the Complaint Registry are not suitable for incorporation
into these regulations, they will be posted on the Department's
website, and the public will be able to access the Complaint Registry
through multiple media.
6. Comment: Numerous commenters ask how the Complaint Registry will
be set up. Others ask who will have ultimate oversight over the
Complaint Registry. Other commenters want to know if the Complaint
Registry will be established within the Department. Some commenters
prefer that its precise functions be detailed in an agreement with the
Department.
Response: The Department no longer contemplates that the Complaint
Registry will be an independent entity with which the Department will
have an agreement. Rather it will be a system established by the
Department to assist the accrediting entities and the Department in
their oversight functions. The relevant sections in subpart J,
Sec. Sec. 96.68-71, have been revised so that a party to an adoption
case with a complaint against an agency or person may file it with the
Complaint Registry after first seeking to resolve it with the agency or
person. The Complaint Registry will receive and maintain information on
complaints, and track the outcome of complaints. Addressing the
complaints will be the responsibility of the accrediting entities and,
in some circumstances, the Department. Every accredited agency or
approved person will be required to give information to clients about
their own complaint procedures as well as contact information for the
Complaint Registry pursuant to Sec. 96.41(a).
Subpart J describes the general duties and functions of the
Complaint Registry. Once the Department has set up the Complaint
Registry, information about the functions and processes of the
Complaint Registry, as well as contact information, will be posted on
the Department's website.
7. Comment: A few commenters want the Complaint Registry housed
with the Federal Trade Commission (FTC).
Response: The IAA gives the Department and its designated
accrediting entities the responsibility for all accreditation and
approval functions. The Complaint Registry is not provided for by the
IAA, but is being provided for by the Department in its discretion to
assist the accrediting entities and the Department in performing their
oversight functions under the IAA. While section 102(c) of the IAA
explicitly states that the Department's functions may not be delegated
to any other Federal agency, the Department notes that nothing would
preclude the FTC from undertaking an investigation of an adoption
service provider if the FTC had jurisdiction to do so under its own
authorizing legislation (e.g., for false advertising).
8. Comment: One commenter asks that the Department provide some
method to ensure that agencies and persons keep records of complaints
against them and provide factual information about those complaints to
any individual who requests it.
Response: Pursuant to Sec. 96.41, accredited agencies and approved
persons are required to keep records of complaints against them, and to
provide reports to the accrediting entity and the Department on the
complaints they received and how they were resolved. In addition, Sec.
96.92 requires accrediting entities to maintain written records
documenting complaints against accredited agencies and approved
persons, and steps taken to resolve complaints. If a member of the
public inquires about complaints against a particular agency or person,
the accrediting entity must provide information on substantiated
complaints.
9. Comment: A commenter that is a State licensing authority
suggests that referrals be made by the accrediting entity to the
applicable State licensing authorities when complaints involve agencies
or persons who are also subject to State monitoring. This would
facilitate a close working relationship and coordination between the
accrediting entities and State licensing authorities.
Response: The Department agrees that communication between
accrediting entities and State licensing authorities is important. The
Department has revised Sec. 96.72(b) to require the accrediting
entity, after consultation with the Department, to refer to a State
licensing authority or appropriate law enforcement authorities
substantiated complaints that involve conduct in violation of Federal,
State, or local law. The Department has also revised Sec. 96.77(d) to
require reporting to the appropriate State licensing authority of any
adverse action that changes the accreditation or approval status of an
agency or person. See also comment 1 on Sec. 96.77.
10. Comment: One commenter states that the funding for the
Complaint Registry should come from fees levied by the Department.
Others want the Department to fund the Complaint Registry. Others want
the provision permitting accrediting entities to collect and remit fees
for the Complaint Registry deleted. Other commenters state that the
fees for the Complaint Registry should not be levied collectively and
that the cost of complaints should be borne exclusively by the agency
or person in question. Commenters would prefer that information on fees
be clear.
Response: The Department agrees that the Complaint Registry must be
adequately funded. We therefore have retained the provisions that give
us the discretion on how to fund the Complaint Registry. The Complaint
Registry will assist both the Department and the accrediting entities,
each of which has authority under the IAA to charge fees for its
functions. How the Complaint Registry will actually be funded will
depend on the overall costs of operating it, the availability of
appropriated funds, and the proper allocation of costs between the
Department and the accrediting entities.
11. Comment: One commenter recommends that every complaint be
forwarded to a designated accrediting entity for review.
Response: The Complaint Registry will make complaints available to
the accrediting entity and the Department. The Department anticipates
that all properly filed complaints against accredited agencies and
approved persons that raise an issue of compliance with the Convention,
the IAA, or the regulations implementing the IAA will be forwarded to
the appropriate accrediting entity, with the possible exceptions of
sensitive law enforcement matters and complaints raised by government
officials or a foreign Central Authority directly with the Department
pursuant to Sec. 96.69(d). Even if an accrediting entity is not given
a particular complaint to review directly, it will be informed of all
such complaints that are filed against an
[[Page 8119]]
agency or person that it has accredited or approved. In addition,
pursuant to Sec. 96.41, accredited agencies and approved persons are
required to provide the accrediting entity and the Department with
reports on the complaints they received and how they were resolved.
12. Comment: A commenter recommends that the Department add
criteria to the regulations specifying the process for submitting
complaints against the Complaint Registry. It suggests that such
complaints be handled in the same way complaints about accrediting
entities will be handled.
Response: The public may alert the Department, Bureau of Consular
Affairs, of any dissatisfaction it has with the operation of the
Complaint Registry. Because the Department no longer contemplates that
the Complaint Registry will be an independent entity, but rather that
it will be a system established by the Department to assist the
Department and the accrediting entities, the Department does not
anticipate that any procedures for filing complaints against the
Complaint Registry will be necessary.
Section 96.71--Review of Complaints Against Accredited Agencies and
Approved Persons by the Accrediting Entity
Comment: One commenter asks if the notifications of the outcome of
complaint investigations made pursuant to Sec. 96.71(c) (which in the
proposed rule would have required notifications to the complainant, the
Complaint Registry, and to any other entity that referred information),
will be available to the public through a FOIA request. Commenter
believes that such information will help the public protect itself and
make informed decisions.
Response: The Department has ensured, in subpart M of these
regulations, that the public may obtain information about the outcome
of an accrediting entity's investigations into a complaint. Section
96.92(a) requires an accrediting entity to verify, upon inquiry from a
member of the public, whether there have been any substantiated
complaints against an accredited agency or approved person and, if so,
to provide information about the status and nature of the substantiated
complaint. Thus, members of the public may learn the outcome of an
investigation that resulted in a substantiated complaint against an
accredited agency or approved person. Section 96.91(b) also requires an
accrediting entity to explain to the public the reasons for any
withdrawal of temporary accreditation, or suspension, cancellation, or
refusal to renew accreditation or approval, or any debarment.
Section 96.71(d) of the final rule requires that the accrediting
entity enter information on the outcome of complaint investigations
into the Complaint Registry established by the Department. The FOIA and
its exceptions, along with other applicable Federal law such as the
Privacy Act, will apply to this information to the extent that it
constitutes a Department record.
Section 96.72--Referral of Complaints to the Secretary and Other
Authorities
1. Comment: One commenter thinks that the regulations limit reports
to the Department by an accrediting entity to complaints that
demonstrate a pattern of serious, willful, grossly negligent, or
repeated failures to comply with the standards of subpart F. The
commenter requests that an accrediting entity report every complaint to
the Department and make the investigation public.
Response: The regulations do not limit the reporting requirements
of an accrediting entity to the serious infractions listed in Sec.
96.72. Pursuant to Sec. 96.93(a)(4), accrediting entities must make
semi-annual reports to the Department that summarize, among other
things, all substantiated complaints against accredited agencies and
approved persons and the impact of such complaints on their
accreditation or approval status. As well, under Sec. 96.71, the
accrediting entity is required to enter information into the Complaint
Registry about the outcomes of investigations and actions taken on
complaints. This information then will be available to the Department.
As well, Sec. 96.92 does require an accrediting entity to respond
to public inquiries regarding substantiated complaints against
accredited agencies or approved persons, disclosing the status and
nature of the complaint. The public, therefore, has access to
information about complaints against agencies and persons.
2. Comment: One commenter suggests that the regulations should
require accrediting entities to have an investigator familiar with
relevant laws, as well as Section 501(c) of the Tax Code, on retainer
to investigate complaints.
Response: Pursuant to Sec. 96.24(a), accrediting entities must use
evaluators that have expertise in intercountry adoption, standards
evaluation, or management or oversight of a child welfare organization.
Evaluators with this type of expertise are presumed to have familiarity
with relevant laws. The Department does not think it necessary to
specify in these regulations exactly what evaluators must know about
relevant laws. The Department wants to leave flexibility in the
regulations to allow accrediting entities to find and use the people
they believe will be most qualified for the job of evaluating agencies
and persons.
Subpart K--Adverse Action by the Accrediting Entity
Subpart K is organized in the same way as in the proposed rule, and
includes Sec. 96.74 (Scope); Sec. 96.75 (Adverse action against
accredited agencies or approved persons not in substantial compliance);
Sec. 96.76 (Procedures governing adverse action by the accrediting
entity); Sec. 96.77 (Responsibilities of the accredited agency,
approved person, and accrediting entity following adverse action by the
accrediting entity); Sec. 96.78 (Accrediting entity procedures to
terminate adverse action); Sec. 96.79 (Administrative or judicial
review of adverse action by the accrediting entity); and Sec. 96.80
(Reserved).
The Department made a number of revisions to Sec. Sec. 96.76--
96.79 of this subpart, which are discussed below and at section II,
subsection C of the preamble, above. Many of these revisions clarify
the options that are available to an agency or person that is faced
with an adverse action. A number of others relate to the transfer of
Convention cases and adoption records.
Section 96.75--Adverse Action Against Accredited Agencies or Approved
Persons Not in Substantial Compliance
1. Comment: A commenter requests that the Department specify
whether imposing the adverse action of suspension means that an agency
or person loses accreditation or approval and must transfer cases. If
the purpose of suspension is to allow an entity a short period of time
in which to take corrective action to comply with standards, the
commenter recommends the category be renamed ``probation, with required
corrective action'' and not include a requirement to transfer cases and
records. Another commenter echoes the suggestion of a probationary
period, recommending a one-time, three-month probationary period. The
commenter also states that classifying corrective action as an adverse
action, as Sec. 96.75(b) does, is inconsistent with the typical use of
the term ``corrective action;'' this commenter believes that requiring
corrective action is typically a precursor to a decision to impose a
penalty. These commenters also state that there is
[[Page 8120]]
insufficient due process for agencies or persons that are subject to
adverse actions. Other commenters support the regulations as stated.
Response: The Department is not renaming, removing, or creating any
category of adverse action in response to these comments, because
section 202(b)(3) of the IAA specifies the types of adverse action an
accrediting entity may take as including requiring corrective action;
imposing sanctions; and refusing to renew, suspending or canceling
accreditation or approval. The IAA does not specify ``probation'' as an
adverse action. If an accrediting entity requires corrective action or
imposes sanctions--two of the adverse actions specified by the IAA--and
yet remains concerned about the agency's or person's compliance with
the standards in subpart F, it may take one of the other types of
adverse action provided for in the IAA--affecting the accreditation or
approval status of the agency or person--and may require the agency or
person to transfer any Convention cases or adoption records.
In response to the question on the effects of suspension, we note
that, per Sec. 96.77(b), ``suspension'' of accreditation or approval
will require an agency or person to cease to provide adoption services
in Convention adoption cases and consult with the accrediting entity to
determine whether to transfer its Convention cases and adoption
records. In the case of cancellation of accreditation or approval,
however, Convention cases and adoption records must be transferred to
other accredited agencies, approved persons, or State archives,
according to the plans required by Sec. Sec. 96.33(e) and 96.42(d).
In response to commenters' concerns about the due process available
to agencies or persons facing adverse actions, the Department notes
that Sec. 96.76(b) of the rule provides that, prior to taking adverse
action, the accrediting entity may advise the agency or person of the
deficiencies that may warrant an adverse action, provide an opportunity
to take corrective action, and recognize demonstrated compliance as
curing the deficiency. If the accrediting entity does not communicate
with the agency or person prior to taking the adverse action, Sec.
96.76(b) requires the accrediting entity subsequently to allow the
agency or person to demonstrate that the adverse action was
unwarranted. We note, too, that agencies and persons may seek judicial
review in Federal court of adverse actions in accordance with the IAA.
Section 96.79 incorporates the IAA's provisions on judicial review.
Please see the discussion on Sec. Sec. 96.76 through 96.79 for a
summary of comments on these sections, and the Department's detailed
responses related to options to protest adverse actions.
2. Comment: A commenter objects to accrediting entities imposing
sanctions regarding specific cases or specific Convention countries as
described in Sec. 96.75(e). Other commenters submitted conflicting
comments about whether accrediting entities should be allowed to
determine whether an agency or person has substantially complied with
standards for accreditation or approval. Other commenters state that
the Department should develop the procedures used by accrediting
entities to impose adverse actions. Several commenters state that Sec.
96.76 does not properly reflect section 204 of the IAA, regarding the
imposition of adverse actions, and suggest that the language of the IAA
be incorporated into the regulations to establish the standards for the
imposition of adverse actions.
Response: To enforce the accreditation and approval standards laid
out in subpart F of these regulations, the IAA gives both accrediting
entities and the Department the authority to impose adverse actions.
Section 202(b) of the IAA gives an accrediting entity authority to take
adverse action when an agency or person is not in substantial
compliance with the applicable requirements, and gives accrediting
entities substantial flexibility in determining which adverse action is
appropriate. The Department believes Sec. 96.75 accurately reflects
this flexibility in the IAA.
We are not removing the regulatory provisions that permit
accrediting entities to impose sanctions related to a particular case
or for a specific Convention country. Accrediting entities will be in
the best position to learn of problems in specific cases or Convention
countries and to determine if corrective actions are needed and what
adverse action is appropriate. The methods developed by the accrediting
entities to assess substantial compliance, pursuant to Sec. 96.27, may
also aid the accrediting entities in determining which adverse actions
are appropriate for particular situations.
Finally, we believe this provision is consistent with section
204(b) of the IAA, which only requires the Department to suspend or
cancel accreditation or approval in instances in which it finds that an
agency or person is substantially out of compliance with the standards
in subpart F and that the accrediting entity has failed or refused,
after consultation with the Department, to take appropriate enforcement
action. The Department may also debar agencies or persons in egregious
circumstances, as specified in section 204(c). Subpart L of the rule
contains a number of provisions incorporating IAA section 204's
guidelines for Departmental oversight of agencies and persons.
Section 96.76--Procedures Governing Adverse Action by the Accrediting
Entity
Comment: Several commenters recommend that the regulations clearly
state that accrediting entities should be allowed to take adverse
action without notice only in the case of ``clear and convincing
evidence of an imminent danger to a child.'' Other commenters assert
that if an adverse action is taken without notice, the accrediting
entity must allow the accredited agency or approved person an
opportunity after the notice is issued to provide information refuting
that the adverse action was warranted.
Response: We have changed Sec. 96.76 to address the commenters'
concerns about providing notice to agencies and persons and to ensure
that it is consistent with the IAA. Section 96.76(b) now provides that,
before taking an adverse action, the accrediting entity may advise the
agency or person of the deficiencies that may warrant adverse action;
provide an opportunity for the agency or person to take corrective
action; and recognize demonstrated compliance. This section also
provides that, if the accrediting entity takes the adverse action
without first providing notice, the accrediting entity must
subsequently provide notice and an opportunity for the agency or person
to refute that the adverse action was warranted. Thus the affected
agency or person is always given an opportunity to be heard, either
before or after adverse action is taken, and the accrediting entity is
given the flexibility to act immediately if the circumstances so
warrant. The Department thinks it important to leave the accrediting
entities the discretion to balance the interests and risks at stake for
each factual scenario, in determining at what point to allow the
affected agency or person an opportunity to be heard. We have removed
from the rule the example given in the parenthetical, to avoid any
suggestion that the example is the sole circumstance in which prior
notice would not be required.
[[Page 8121]]
Section 96.77--Responsibilities of the Accredited Agency, Approved
Person, and Accrediting Entity Following Adverse Action by the
Accrediting Entity
1. Comment: One commenter recommends that an accrediting entity be
required to notify the applicable State approval or licensing authority
of an adverse action against an accredited agency or approved person,
to enhance coordination between accrediting entities and State
licensing authorities.
Response: The Department agrees that, in order to comply with these
regulations, accrediting entities will have to communicate well with
State licensing authorities. Therefore, the Department is adding to
Sec. 96.77(d) the requirement that accrediting entities report to the
appropriate State licensing authority, in addition to the Department
(as was required by the proposed rule), any adverse actions they take
that changes the accreditation or approval status of an agency or
person. This notification requirement will be addressed more fully in
the accrediting entity's agreement with the Department.
2. Comment: Several commenters recommend that the Department
clarify the guidelines for the transfer of Convention cases due to
suspension or cancellation of accreditation or approval. Many
commenters ask whether prospective adoptive parent(s) will have a role
in the decision to transfer their case. Another commenter thinks that
accrediting entities should not play any role in determining whether
and how to transfer pending cases or records, suggesting that it would
not be appropriate for the accrediting entity to be involved in
handling of individual cases or, given the financial benefit associated
with the transfer, in selecting the agency or person to receive
transferred cases.
Response: The Department is not eliminating the requirement that
after cancellation and, in some instances after suspension, an agency
or person must transfer its Convention cases under the oversight of the
accrediting entity. Under Sec. Sec. 96.33(e) and 96.42(d), the agency
or person must have plans for transferring Convention cases and
adoption records if it ceases to be able to provide adoption services.
In the case of cancellation, the final rule requires agencies and
persons to execute these plans. In the case of suspension, the agency
or person must consult with the accrediting entity about whether to do
so. Agencies and persons will have the main responsibility for working
with families when transferring their Convention cases after suspension
or cancellation but they will have to keep the accrediting entity
informed about the process.
In the event that the agency or person is unable to transfer its
Convention cases and/or adoption records consistent with these plans,
the Department has amended Sec. Sec. 96.77(b) and (c) to require the
accrediting entity to inform the Department of the breakdown in the
transfer plans, and to then assist the Department in coordinating
efforts to help the agency or person with the transfer of pending
Convention cases and adoption records. Such coordination will include
efforts to identify other accredited agencies or approved persons to
assume responsibility for the cases. This requirement ensures that the
accrediting entity contributes its institutional knowledge about the
agency or person, including knowledge related to the agency or person's
transfer plan, to the process of transferring cases and records. This
requirement also compels the accrediting entity to remain involved in
overseeing case transfers that result from its adverse actions. It
should not, however, put the accrediting entity in the position of
independently assuming individual case transfer responsibilities and/or
independently selecting alternate accredited agencies and/or approved
persons to which cases will be transferred.
Section 96.78--Accrediting Entity Procedures To Terminate Adverse
Action
Comment: Several commenters suggest that an agency, person, or
other interested party should have the opportunity to challenge the
accrediting entity's interpretation of a regulation or law. Further,
some commenters express concern that the provision in Sec. 96.67 that
requires an agency or person to petition an accrediting entity to
terminate an adverse action on the grounds that the deficiencies cited
have been corrected before seeking judicial review in effect requires
an agency or person to admit guilt. The commenters recommend that the
Department establish an administrative mechanism through which an
agency or person can challenge an adverse action it believes was
unfounded or taken improperly.
Response: The Department notes that this rule provides several
opportunities for agencies or persons to challenge the accrediting
entity's interpretation of a regulation or law. Under Sec. 96.76(b),
as revised, an accrediting entity must allow an accredited agency or
approved person the opportunity to submit information refuting that an
adverse action would be or is warranted. The accrediting entity may
withdraw, or choose not to impose, an adverse action based on this
information. The IAA also provides for Federal judicial review of an
accrediting entity's adverse action.
In addition, the Department has revised Sec. 96.78 to clarify the
responsibilities of the accrediting entity to provide an opportunity to
seek termination of an adverse action. Section 96.78(a) now states that
an accrediting entity must maintain internal petition procedures,
approved by the Department, to give agencies and persons an opportunity
to challenge adverse actions on grounds that the deficiencies
underlying the adverse action have been corrected. The accrediting
entity must now inform the agency or person of these procedures at the
same time that it informs them of the adverse action itself. To ensure
consistency with the fact that the IAA provides no other right to
review of adverse actions at the accrediting entity level, the
provision now also makes explicit that the accrediting entity is not
required to maintain any other procedures to terminate or review
adverse actions, and may make such procedures available only with the
consent of the Department.
In response to commenters' concerns that this section requires an
agency or person to assume ``guilt'' before challenging an adverse
action, the Department has added Sec. 96.78(f) to clarify that nothing
in this section would prevent an accrediting entity from withdrawing an
adverse action if it concludes that such an action was based on a
mistake of fact or other error. Thus, an agency or person that believes
it has done nothing wrong may ask an accrediting entity to withdraw an
adverse action as unfounded or based on a factual error. Since this is
not a formal administrative remedy, but just an option for conducting
business that remains available, this approach could be taken at any
time. While the agency or person will have no formal ``right'' to
review, good business practices will presumably result in the
accrediting entity in some cases choosing to change its prior decision.
Alternatively, the agency or person may choose to challenge the action
in district court. In contrast, an agency or person who wishes to
demonstrate that it has taken corrective action to remediate an
admitted deficiency may petition the accrediting entity to terminate
the adverse action under the procedures required under Sec. 96.78(a).
Please also see the responses to comments on Sec. Sec. 96.79 and
96.84, related to review of accrediting entity decisions.
[[Page 8122]]
Section 96.79--Administrative or Judicial Review of Adverse Action by
the Accrediting Entity
1. Comment: Several commenters raise concerns over the limits of
judicial and/or administrative review of adverse action. Many
commenters request that the Department create guidelines for the
imposition of adverse actions that would include notices, standards of
proof, hearings, an internal review process, and an appeal process to
ensure due process for accredited agencies or approved persons.
Response: Under Sec. 96.78(a), accrediting entities are required
to maintain internal procedures, approved by the Department, to allow
agencies or persons to petition for termination of adverse actions on
the grounds that the deficiencies necessitating the adverse action have
been corrected. This process for petitioning to terminate an adverse
action on these limited grounds is the only internal review procedure
set out in the IAA. If, after exhausting its remedies through the
internal petition process, where applicable, an agency or person wishes
to appeal the final decision of the accrediting entity, it may do so in
Federal court as provided under the IAA. We have modified Sec.
96.79(a) to reflect these parameters in a way that is consistent with
the IAA.
The Department has also revised Sec. 96.79(b) to emphasize that
the IAA's limitation on administrative review of adverse actions by an
accrediting entity in section 202(c)(3) of the IAA necessarily applies
to both nonprofit accrediting entities and public domestic authorities
that are designated as accrediting entities.
2. Comment: Some commenters maintain that the scope of judicial
review after a denial of accreditation or approval as set forth in
Sec. 96.79(b) is unreasonably narrow. One commenter suggests that, if
an agency or person is denied accreditation or approval, the agency or
person should be allowed to apply to another accrediting entity.
Response: The IAA provides for judicial review, in a United States
district court, of adverse actions, including requiring corrective
action, imposing sanctions, or suspension of, cancellation of, or
refusal to renew accreditation or approval. As discussed in the
response to the comment on Sec. 96.59 in subpart G, denial of
accreditation or approval is not included within the scope of such
review.
The Department has not changed the regulation to permit agencies
and persons to apply to a different accrediting entity after being
denied accreditation or approval. The Department does not want to
encourage agencies and persons to ``shop around'' to different
accrediting entities instead of bringing their services into compliance
with these regulations. In addition, the Department wishes to avoid the
drain on the limited resources of all accrediting entities that would
result if a second accrediting entity would be required to go through
the work of gathering documentation, doing site visits, and
interviewing people in connection with an evaluation of an agency or
person that another accrediting entity has already evaluated.
3. Comment: One commenter thinks that Sec. 96.79(c), which
requires an accredited agency or approved person to seek Federal
judicial review of an adverse action through a Federal district court,
will hinder it from taking on adoption cases with extenuating
circumstances or special needs children.
Response: The provisions for judicial review in the IAA and Sec.
96.79(c) are intended as a benefit, not a burden, to agencies and
persons, to ensure that they are treated fairly when subjected to
adverse actions. Sections 96.76 and 96.78 also now clearly provide
opportunity for an agency or person to seek reversal of an adverse
action without going to Federal court, which may address the
commenter's apparent concern with the time and cost of Federal
litigation. This provision should not in any way discourage agencies or
persons from performing adoption services for special needs children in
Convention countries.
4. Comment: One commenter requests that the Department explain the
significance of IAA section 202(c)(3) of the IAA, which provides for
judicial review of adverse actions in Federal courts under 5 U.S.C. 706
of the Administrative Procedure Act (APA), and treats an accrediting
entity as an ``agency'' under 5 U.S.C. 701 for the purpose of this
review. The commenter suggests that its ability and willingness to act
as an accrediting entity will be seriously impacted by this provision,
along with that of other private organizations and public authorities.
Response: The right provided in section 202(c)(3) of the IAA to
challenge adverse actions in Federal courts is an express exception to
section 504 of the IAA's mandate that the Convention and the IAA shall
not be construed to create a private right of action, except where
otherwise provided. Section 706 of the APA sets out the legal standards
by which a Federal court may review decisions made by agencies, as
defined in the APA, and the procedures which the agencies used to make
those decisions. The relief sought in an APA action is generally
reversal or modification of an administrative action, and money damages
are not available. The statement that, for the purposes of challenges
to adverse actions, an accrediting entity will be considered a 5 U.S.C.
701 agency, brings all accrediting entities (private nonprofit or
public) into the scope of ``agencies'' against whom APA actions may be
brought. Thus, for example, 5 U.S.C. 706(2)(A) would allow a Federal
court to set aside an adverse action that had been taken ``in excess''
of an accrediting entity's authority under the IAA.
5. Comment: Two commenters recommend that the Department include a
provision for alternative dispute resolution, given the potential
financial burden of Federal court litigation. According to one of the
commenters, this could be accomplished by allowing accrediting entities
to utilize dispute resolution clauses in their contracts with agencies
or persons seeking accreditation or approval.
Response: Section 202(c)(3) of the IAA expressly authorizes Federal
judicial review of certain enumerated adverse actions taken by an
accrediting entity, and section 202(c)(2) expressly prohibits
administrative review of an adverse action by an accrediting entity
(except to the extent review is provided under section 202(c)(1) to
determine if deficiencies have been corrected). The IAA is silent on
whether accrediting entities and agencies and persons may agree to
alternative dispute resolution procedures. We are not including in the
regulations a provision that permits designated accrediting entities to
mandate that agencies or persons agree to binding arbitration, or agree
to use other alternative dispute resolution mechanisms; such an
approach could lead to agencies or persons feeling coerced. By the same
token, we are not ruling out the option that accrediting entities and
agencies and persons may mutually agree to alternative dispute
mechanisms with respect to a particular dispute.
Subpart L--Oversight of Accredited Agencies and Approved Persons by the
Secretary
Subpart L is organized in the same way as in the proposed rule, and
includes Sec. 96.81 (Scope); Sec. 96.82 (The Secretary's response to
actions by the accrediting entity); Sec. 96.83 (Suspension or
cancellation of accreditation or approval by the Secretary); Sec.
96.84 (Reinstatement of accreditation or approval after suspension or
cancellation by the Secretary); Sec. 96.85 (Temporary and permanent
debarment
[[Page 8123]]
by the Secretary); Sec. 96.86 (Length of debarment period and
reapplication after temporary debarment); Sec. 96.87 (Responsibilities
of the accredited agency, approved person, and accrediting entity
following suspension, cancellation, or debarment by the Secretary);
Sec. 96.88 (Review of suspension, cancellation, or debarment by the
Secretary); and Sec. 96.89 (Reserved).
We have modified Sec. 96.83(a) and Sec. 96.85(b) to clarify that
the Department alone has the discretion to determine whether the
conditions for taking action under Sec. Sec. 96.83 and Sec. 96.85
have been satisfied. In addition, the Department has added new
Sec. Sec. 96.85(b)(2)(ii) and (iii), incorporating directly the
provisions of section 204(e) of the IAA, which specifies as grounds for
debarment certain egregious failures to comply with home study
requirements. Other changes, in particular changes to Sec. Sec. 96.84,
96.86, and 96.87 paralleling changes made in subpart K, are described
below.
Section 96.81--Scope
1. Comment: Two commenters recommend that oversight of agencies and
persons should be moved from accrediting entities and the Department to
the FTC. A commenter is concerned that the Department lacks expertise
and interest in overseeing agencies and persons.
Response: The explanation given in the response to comment 7 on
Sec. 96.70 above, also applies to this comment. The Department is
committed to identifying and working with qualified accrediting
entities to oversee agencies and persons.
2. Comment: One commenter suggests that the Department create a
centralized online database with information on the accreditation
status of all agencies and persons.
Response: Accrediting entities are required to maintain and make
available to the public information on accredited agencies and approved
persons, such as their specific accreditation/approval status. (See
Sec. Sec. 96.91 and 96.92). The Department will make available, on its
website, the identities of the accrediting entities.
Section 96.82--The Secretary's Response to Actions by the Accrediting
Entity
Comment: Several commenters believe that imposing adverse actions
on agencies and persons without notification is problematic. They think
that Sec. 96.82(b) allows the Department to inform the Hague Permanent
Bureau of an adverse action when the party in question has not had an
opportunity to contest the decision from the accrediting entity. To
ensure that the rights of agencies and persons are protected,
commenters request creation of a detailed appeal process with notice
and hearing.
Response: In order for the Hague Permanent Bureau to have an
accurate list of accredited agencies and approved persons, consistent
with our obligations under Article 13 of the Convention, the Hague
Permanent Bureau must be notified of changes in status that result from
adverse actions, even when the adverse action has been taken without
prior notice. Therefore we are not altering Sec. 96.82(b) in response
to this comment. We note that Sec. Sec. 96.84 and 96.86
correspondingly require the Department to notify the Hague Permanent
Bureau, as appropriate, when an adverse action has been terminated or
withdrawn. For a discussion of the issue of notice in the context of
adverse action taken by an accrediting entity, please see the response
to the comment on Sec. 96.76.
Section 96.83--Suspension or Cancellation of Accreditation or Approval
by the Secretary
Comment: Commenters suggest that the third provision in Sec.
96.83(b), stating that the Department may suspend or cancel
accreditation or approval if such action ``will protect the interests
of children'' should be listed first, ahead of furthering U.S. foreign
policy or national security interests and protecting the ability of
U.S. citizens to adopt children under the Convention.
Response: The listing of grounds on which the Department may act is
not intended to convey their relative importance, or any sequence in
which the grounds will be considered. The Department, nevertheless,
made the suggested change. A key objective of both the Convention and
the IAA is to ensure that standards are in place that protect the best
interests of children.
Section 96.84--Reinstatement of Accreditation or Approval After
Suspension or Cancellation by the Secretary
Comment: One commenter opposes the provision allowing an agency or
person to apply for reinstatement of accreditation or approval.
Response: Section 204(b)(2) of the IAA explicitly allows
applications for reinstatement of accreditation or approval by agencies
or persons in situations in which the Department is satisfied that the
deficiencies that necessitated cancellation have been corrected.
Section 96.84 of the rule tracks these provisions of IAA section
204(b)(2), as well as its provisions on terminating a suspension. The
comment nevertheless prompted the Department to add language to Sec.
96.84(a) to specify the narrow grounds on which the agency or person
can petition the Department for relief--namely, that deficiencies
necessitating the suspension or cancellation have been corrected.
Moreover, we note that Sec. 96.84(a) requires that an agency or person
authorized to reapply for accreditation or approval generally must
reapply to the accrediting entity that handled its prior application,
to ensure that the agency or person will be subject to rigorous
evaluation.
The Department has also added Sec. 96.84(b) to make clear that
nothing in this section prevents the Department from withdrawing a
cancellation or suspension upon a finding that the action was based on
a mistake of fact or otherwise in error. Please see also the discussion
in response to comments on Sec. 96.78.
Section 96.85--Temporary and Permanent Debarment by the Secretary
Comment: The only comments specific to Sec. 96.85 noted agreement
with the debarment provisions and the language that defines when the
Department is to take action for debarment.
Response: No response is required to these comments; as noted in
the introduction to the discussion of subpart L, Sec. 96.85 now
incorporates the provisions of section 204(e) of the IAA on debarment
for certain egregious failures to comply with home study requirements.
Section 96.86--Length of Debarment Period and Reapplication After
Temporary Debarment
Comment: The comments on Sec. 96.78 expressing concern that the
proposed rule would force an agency or person to admit guilt before
challenging an adverse action were also made with respect to this
section.
Response: The Department has added Sec. 96.86(c) to clarify that
this section does not prevent the Department from withdrawing a
debarment if it was based on factual or other error. Please see also
the discussion responding to comments on Sec. 96.78.
[[Page 8124]]
Section 96.87--Responsibilities of the Accredited Agency, Approved
Person, and Accrediting Entity Following Suspension, Cancellation, or
Debarment by the Secretary
Comment: Some commenters expressed concern about the case transfer
provisions in the rule.
Response: As discussed above, the Department has modified Sec.
96.87 to reflect the fact that, if accreditation or approval is
cancelled, the plans required by Sec. Sec. 96.33(e) and 96.42(d) will
govern any transfer of Convention cases and adoption records. As with
Sec. 96.77, the provision has been modified to require the accrediting
entity to assist the Department in helping the agency or person to
transfer its Convention cases and adoption records if the agency or
person is unable to transfer Convention cases and adoption records as
planned. Please see the response to comment 2 on Sec. 96.77 for
further explanation.
Section 96.88--Review of Suspension, Cancellation, or Debarment by the
Secretary
Comment: Commenters express concern about the absence of
administrative review and the possibility of ``a few entities or
individuals being able to essentially shut down an agency with no
recourse.'' Commenters request that a ``full review board'' for the
Department's adverse actions be put in place.
Response: The IAA does not provide for administrative review of
suspension, cancellation or debarment by the Department, except to the
extent that section 204(b)(2) of the IAA provides that the Department
may terminate a suspension or authorize re-application for
accreditation or approval if it is satisfied that the deficiencies
underlying a suspension or cancellation of accreditation or approval
have been corrected. Reinstatement in such circumstances is provided
for under Sec. 96.84 of the rule, and the Department has modified
Sec. 96.88(a) to clarify the point that this is the only non-judicial
review procedure available. Sections 96.84(b) and 96.86(c) have been
added to clarify that the Department may withdraw a cancellation,
suspension, or debarment if the Department concludes that the action
was based on a mistake of fact or was otherwise in error. These
provisions are consistent with the overall structure of the IAA.
Subpart M--Dissemination and Reporting of Information by Accrediting
Entities
Subpart M is organized in the same way as in the proposed rule, and
includes Sec. 96.90 (Scope); Sec. 96.91 (Dissemination of information
to the public about accreditation and approval status); Sec. 96.92
(Dissemination of information to the public about complaints against
accredited agencies and approved persons); and Sec. 96.93 (Reports to
the Secretary about accredited agencies and approved persons and their
activities); and Sec. 96.94 (Reserved).
Sections 96.92-96.93 have been revised in response to public
comment, as described below. In addition, while Sec. 96.91 of the
proposed rule would have required an accrediting entity to provide a
summary of the accreditation or approval study of an agency or person
upon request, after further consideration of the burden and cost impact
on accrediting entities, we have eliminated this provision. We believe
that the other information accrediting entities are required to give
the public is sufficient to allow prospective adoptive parent(s) to
make informed decisions, and eliminating this requirement will assist
in minimizing accreditation fees.
Section 96.91--Dissemination of Information to the Public About
Accreditation and Approval Status
1. Comment: Several commenters suggest that information about
accreditation and approval status should be posted on the Department's
website. One commenter also suggests that information be made available
by e-mail upon request.
Response: Information about accreditation and approval status will
be available through the accrediting entities. The Department will have
information about all accrediting entities posted on its website. Also,
the Department will send the names of accredited agencies and approved
persons to the Hague Permanent Bureau for dissemination on its website.
These arrangements are consistent with the respective roles of the
accrediting entities and the Department under the IAA.
2. Comment: Commenters request that the Department clarify the
scope and methods to be used to disclose information to the public
regarding accredited agencies and approved persons under Sec. 96.91.
One commenter further suggests that an accrediting entity be afforded
the discretion to make the information that it is required to make
available on a quarterly basis under Sec. 96.91(a), available on a
more regular basis.
Response: The Department does not believe that it is necessary to
set out in the regulation the methods which accrediting entities may
use to meet the disclosure requirements of Sec. 96.91. The Department
expects to address this issue in the agreements with the accrediting
entities.
Once the Convention has entered into force for the United States,
accrediting entities will be required to make available to the public
information about accredited agencies and approved persons on a
quarterly basis, pursuant to Sec. 96.91(a). Section 96.91(a) does not
prohibit accrediting entities from making such information available on
a more frequent basis. The information that accrediting entities will
be required to disclose to the public quarterly includes the names and
contact information for each agency and person it has accredited or
approved and the names of agencies and persons to which it has denied
accreditation or approval that have not subsequently been accredited or
approved. Accrediting entities will also have to provide the names of
those who have been subject to suspension, cancellation, or refusal to
renew accreditation or approval; those who have had their temporary
accreditation withdrawn; or who have been debarred, as well as any
information specifically authorized in writing by the accredited agency
or approved person to be disclosed to the public.
In addition, upon request, accrediting entities will have to make
available to the public confirmation of whether a specific agency or
person has been subject to suspension, cancellation, refusal to renew,
or withdrawal of temporary accreditation or approval or has been
debarred, and a brief statement of the reasons for the action. Upon
request, accrediting entities will also have to confirm whether an
agency or person has a pending application for accreditation or
approval and the status of the application. Finally, once the
Convention has entered into force for the United States, accrediting
entities will be required to disclose information, upon request, on
substantiated complaints under Sec. 96.92.
3. Comment: One commenter suggests that accredited agencies and
approved persons should provide information required under subpart M to
parent(s) immediately upon initiating a relationship. Another commenter
thinks that agencies or persons should be required to disclose any
adverse actions or complaints directed against them to parent(s) before
a referral of a child is made, so that prospective adoptive parent(s)
can make an informed decision regarding that agency or person. Another
commenter supports the provision as written.
[[Page 8125]]
Response: The Department is not revising Sec. 96.91 to apply to
agencies and persons as well as to accrediting entities. The purpose of
this provision is to allow clients, if they wish, to get critical
information from one source--the accrediting entities--instead of by
seeking information from each individual agency or person. We believe
that requiring accrediting entities to provide information to the
public about accredited agencies and approved persons will assist the
public in making informed decisions when choosing an adoption service
provider. Clients will, of course, also remain free to seek information
directly from agencies and persons.
We note also that Sec. 96.39 of subpart F sets forth standards on
information disclosure by agencies and persons to the general public
and to prospective clients, and Sec. 96.41 sets forth standards
requiring agencies and persons to provide information on complaint
procedures to clients.
4. Comment: A commenter recommends adding a fourth provision under
Sec. 96.91(b) that requires that each accrediting entity make
available to individual members of the public upon specific request any
information concerning a specific agency or person except: (A)
information identifying prospective or actual adoptive parents, birth
parents or adoptees; (B) complaints which have been determined to be
false or unsubstantiated; and (C) complaints being investigated by the
Complaint Registry or accrediting entity that were filed less than six
months earlier.
Response: Requiring accrediting entities to provide ``any''
information concerning a specific agency or person would be too
burdensome on accrediting entities. While subpart M is intended to help
clients make informed decisions about accredited agencies and approved
persons, it only indirectly furthers the main purpose of the IAA and
these implementing regulations, which is to ensure that agencies and
persons comply with the Convention and the IAA. Thus, we have not
modified subpart M to impose such a public reporting requirement on
accrediting entities.
Section 96.92--Dissemination of Information to the Public About
Complaints Against Accredited Agencies and Approved Persons
Comment: Several commenters believe that requiring the accrediting
entity to disclose information on both substantiated and
unsubstantiated complaints against an agency or person could promote
rumors, speculation, or otherwise undue prejudice toward that agency or
person. Commenters recommend that only information about substantiated
complaints should be made available to the public.
Response: The Department has revised Sec. 96.92 to require
reporting only of substantiated complaints. The Department believes
that requiring accrediting entities to report to the public only
substantiated complaints against an agency or person is sufficient
protection for potential clients. It will also reduce the reporting
burden on accrediting entities and may, therefore, reduce the cost of
accreditation or approval.
Section 96.93--Reports to the Secretary About Accredited Agencies and
Approved Persons and Their Activities
Comment: One commenter recommends that reports to the Department
about accredited agencies and approved persons should be made public
because the information contained would be useful to prospective
adoptive parent(s) who are evaluating those agencies and persons.
Others are concerned about the cost and burden of requiring accrediting
entities to make quarterly reports to the Department.
Response: Some of the information contained in an accrediting
entity's report to the Department will be available to the public, upon
request to the accrediting entity, pursuant to Sec. Sec. 96.91 and
96.92. We do not think it necessary or appropriate to include further
provisions addressing when and how any other portions of the
accrediting entities' reports to the Department would be available to
the public, because such disclosures would be covered by Federal laws
on access to records and information.
In response to general concerns about the potential impact of the
reporting requirements on accreditation fees, we have modified Sec.
96.93 so that the reports to the Department under Sec. 96.93(a) are
required on a semi-annual rather than a quarterly basis.
Subpart N--Procedures and Standards Relating to Temporary Accreditation
Subpart N is organized in the same way as in the proposed rule, and
includes Sec. 96.95 (Scope); Sec. 96.96 (Eligibility requirements for
temporary accreditation); Sec. 96.97 (Application procedures for
temporary accreditation); Sec. 96.98 (Length of temporary
accreditation period); Sec. 96.99 (Converting an application for
temporary accreditation to an application for full accreditation);
Sec. 96.100 (Procedures for evaluating applicants for temporary
accreditation); Sec. 96.101 (Notification of temporary accreditation
decisions); Sec. 96.102 (Review of temporary accreditation decisions);
Sec. 96.103 (Oversight by accrediting entities); Sec. 96.104
(Performance standards for temporary accreditation); Sec. 96.105
(Adverse action against a temporarily accredited agency by an
accrediting entity); Sec. 96.106 (Review of the withdrawal of
temporary accreditation by an accrediting entity); Sec. 96.107
(Adverse action against a temporarily accredited agency by the
Secretary); Sec. 96.108 (Review of the withdrawal of temporary
accreditation by the Secretary); Sec. 96.109 (Effect of the withdrawal
of temporary accreditation by the Secretary); Sec. 96.110
(Dissemination and reporting of information about temporarily
accredited agencies); and Sec. 96.111 (Fees charged for temporary
accreditation).
The Department has made a number of changes to the provisions of
subpart N to parallel changes made in the subparts of the rule that
apply to accreditation and approval. As described below, we have also
removed from Sec. 96.103 language that was duplicative of language in
Sec. 96.111, and have further clarified how fees may be charged for
site visits.
Section 96.95--Scope
Comment: One commenter believes that the temporary accreditation
process goes against the intention of Congress and does not address the
needs of small agencies for which the provision was intended. The
commenter states that the IAA used the term ``registration'' to
describe the ``phase-in'' process, which would imply less time and
expense than temporary accreditation.
Response: We have not changed the provisions on temporary
accreditation because we believe they are consistent with both the IAA
and the Convention. The IAA does use the term ``registration'' in the
heading of the section on temporary accreditation, but it is clear
that, regardless of what it is called, the short-term transitional
accreditation process is to be more than a mere sign-up procedure.
(Allowing agencies to conduct Convention adoptions based on a mere
sign-up procedure would be difficult, if not impossible, to justify as
consistent with the Convention.) The IAA criteria for applying for
temporary accreditation are less comprehensive than those required for
full accreditation, yet the statute still requires that an agency
demonstrate basic competency to perform Convention adoptions.
The Department deliberately uses the term temporary accreditation,
rather
[[Page 8126]]
than ``registration,'' to highlight that temporary accreditation, as
envisioned in the IAA, is a stepping-stone to full accreditation;
temporary accreditation is meant to allow small agencies a short period
of time to gather the information and resources necessary to achieve
full accreditation. Temporary accreditation is not a permanent, ongoing
status for small agencies, but is available only as the Convention
first enters into force for the United States, and is a status limited
to, at most, two years. Eventually, small agencies must meet the full
accreditation standards in subpart F to provide adoption services in
Convention cases, or choose to provide adoption services in Convention
cases only as supervised or exempted providers.
The eligibility requirements for temporary accreditation are more
detailed than the broadly worded criteria in the IAA, but they are all
based in the statute. For example, section 203(c)(3)(E) of the IAA
requires that an agency that wishes to get temporary accreditation show
that it ``has not been found to be involved in any improper conduct
relating to intercountry adoptions.'' The Department's regulations at
Sec. 96.96(a)(5) describe what agency behavior would be considered
``improper conduct'' including, (i) a suspension of its State license;
(ii) a recent finding of fault or liability in an administrative or
judicial action; or (iii) a recent finding of criminal fraud or
financial misconduct. These requirements, together with the performance
standards required to maintain temporary accreditation set out in Sec.
96.104, are still significantly less involved than the standards for
full accreditation. Given the difference between the requirements for
full and temporary accreditation, it should take small agencies less
time and expense to obtain temporary accreditation than it would to get
full accreditation. The Department believes that the temporary
accreditation framework will help maintain a diverse array of adoption
service providers that are available to place children eligible for
adoption and to assist birth families and prospective adoptive
families. At the same time, the temporary accreditation framework will
help to ensure that temporarily accredited agencies can still comply
with the basic provisions of the Convention and the IAA.
Section 96.96--Eligibility Requirements for Temporary Accreditation
1. Comment: Commenters support the temporary accreditation
provision, particularly to the extent it may benefit small agencies.
Response: No response is required to these comments.
2. Comment: One commenter states that the current threshold for the
number of cases in which adoption services are performed by an agency
seeking temporary accreditation does not offer sufficient relief for
small agencies. Many commenters request that the threshold for
temporary accreditation be based solely upon the number of Convention
cases. Other commenters want the threshold to be raised to 200 cases
for one year or 100 cases for two years of temporary accreditation.
Response: The threshold number of cases for temporary accreditation
is established by section 203(c) of the IAA, which provides that an
agency can get temporary accreditation for a period of one year if it
has ``provided adoption services in fewer than 100 intercountry
adoptions in the preceding calendar year,'' and for two years if it has
``provided adoption services in fewer than 50 intercountry adoptions in
the preceding calendar year.''
Consistent with the IAA, all ``intercountry adoptions,'' will count
toward the threshold number. Prior to entry into force of the
Convention for the United States, no Convention adoptions would have
been performed in the United States, regardless of the size of the
agency. There is also no basis for reading the term ``intercountry
adoptions'' in this provision of the IAA to mean ``intercountry
adoptions that would have been Convention adoptions had the Convention
been in force in the United States at the time they were performed.''
3. Comment: One commenter strongly suggests that there should be no
extensions of temporary accreditation, under any circumstances.
Response: The rule does not allow any such extensions. Under the
IAA, temporary accreditation is a one-time status that is available
only for a period of time immediately after the Convention enters into
force.
4. Comment: One commenter requests clarification of what
constitutes a small agency under Sec. 96.96(a)(1). It is an agency
that arranges approximately 20 adoptions per year, but that also
conducts over 100 home studies. It questions whether it would qualify
as a small agency, given that home studies are considered an adoption
service.
Response: After careful review, we have concluded that an agency
that arranges 20 adoptions and conducts over 100 home studies a year
would not qualify for temporary accreditation. Section 203(c) of the
IAA provides expressly that agencies that have ``provided adoption
services in fewer than 100 intercountry adoptions'' in the calendar
year preceding entry into force of the Convention can be temporarily
accredited for a one year period (or for a two year period, if
performing adoption services in fewer than 50 intercountry adoptions).
As the commenter correctly notes, ``adoption service'' is defined in
section 3 of the IAA, and is used throughout the IAA, to include home
studies. Accordingly, the commenting agency is providing one of the six
enumerated ``adoption services'' in over 100 cases. Assuming these
services were provided by the agency in the calendar year preceding
entry into force of the Convention, the agency would not qualify for
temporary accreditation.
The fact that such an agency cannot qualify for temporary
accreditation does not mean that it must pursue full accreditation to
continue its work, however. After the Convention enters into force, it
could act as an ``exempted provider'' in those cases in which the
agency performs only home studies, and it could act as a supervised
provider in those few Convention adoptions in which it performs
additional adoption services.
The Department considered whether, notwithstanding its plain
language, section 203(c) of the IAA could be construed to exclude home
studies from adoption services on the possible ground that, after the
Convention comes into force, providers that perform only a home or
child background study, and no other adoption service in a case, will
be excepted by IAA section 201(b) from the section 201(a) requirement
that all adoption services be provided by an accredited, approved, or
supervised provider. We are satisfied that the answer to this question
is no. As just explained, the plain language of section 203(c) directs
us to consider all cases in which adoption services are provided when
determining eligibility for temporary accreditation, and home studies
are an adoption service. While section 201(b) exempts home or child
background study providers from meeting the accreditation, approval, or
supervision requirement when the home or child background study is the
only service they provide in a case, the exemption does not change the
fact that a home or child background study is an adoption service.
Instead the exemption recognizes special circumstances in which a
provider will not be required to be accredited, approved or supervised.
Accreditation, approval, or supervision of home or child background
study providers is still required if the home or child background study
is performed in
[[Page 8127]]
conjunction with other adoption services on a case. Moreover, the
purpose of IAA section 203(c) is to determine who is qualified for
temporary accreditation based on the historic volume of cases in which
an applicant has provided adoption services prior to entry into force
of the Convention. This retrospective rule has an entirely different
function than the forward-looking rule for determining, under IAA
section 201, which providers need to be accredited, approved, or
supervised after entry into force of the Convention. The fact that
providers of home studies in some circumstances do not need to be
accredited, approved, or supervised after entry into force is not
inconsistent with the fact that home studies are counted as ``adoption
services'' for the purposes of determining whether an agency that
wishes to become accredited can first be temporarily accredited.
Accordingly, assuming the commenter performs its current volume of
adoption services in the year preceding entry into force of the
Convention, the options available to the commenter under the statute
and regulations will be either to obtain full accreditation, or to
operate as an exempted or supervised provider.
5. Comment: A commenter suggests that limiting eligibility to
agencies that have provided adoption services for three years prior to
the transitional application deadline (TAD) will exclude small agencies
that have recently received their State licenses. Others think
requiring a license for five years prior to the TAD is more
appropriate. One commenter suggests that temporary accreditation should
be available to any group that wishes to form a new adoption agency,
otherwise the creation of new agencies will be discouraged, and the
number of agencies available to prospective adoptive parent(s) will be
severely limited.
Response: The requirement that an agency must have provided
adoption services for at least three years prior to the TAD before it
is eligible for temporary accreditation was taken directly from section
203(c)(3)(B) of the IAA. The Department believes that it is
unnecessary--and would be inconsistent with the purpose of the
temporary accreditation provisions of the IAA--to require by regulation
that small agencies have provided services for a specific time period
longer than 3 years.
6. Comment: Some commenters suggest that agencies should be subject
to more stringent requirements for temporary accreditation than those
in the proposed rule.
Response: The Department is not modifying the standards for
temporary accreditation based on this comment. We believe that they are
consistent with the IAA's provisions on temporary accreditation and
strike the proper balance between ensuring that agencies can provide
adoption services in the manner required under the IAA and the
Convention and minimizing the impact on small agencies.
Section 96.98--Length of Temporary Accreditation Period
Comment: One commenter suggests that the period of temporary
accreditation be one year, not two years.
Response: The Department does not have the authority to vary the
lengths of the temporary accreditation periods from the periods set in
the IAA. Section 203(c) of the IAA provides that an agency can get
temporary accreditation for a period of one year if it has ``provided
adoption services in fewer than 100 intercountry adoptions in the
preceding calendar year,'' and for two years if it has ``provided
adoption services in fewer than 50 intercountry adoptions in the
preceding calendar year.''
Section 96.100--Procedures for Evaluating Applicants for Temporary
Accreditation
Comment: A commenter supports allowing accrediting entities to use
site visits to determine an agency's eligibility for temporary
accreditation, but the commenter recommends that accrediting agencies
rely primarily on documentation when evaluating applications for
temporary accreditation in order to minimize the burden and cost for
small agencies.
Response: The Department agrees with the thrust of this comment but
does not believe the regulation should be modified to specifically
require primary reliance on documentation. The rule, as written,
strikes an appropriate balance between minimizing the burden and cost
for small agencies to get temporarily accredited and ensuring that
temporarily accredited agencies can provide satisfactory adoption
services to families. If the accrediting entity is satisfied, after
reviewing the documentation submitted by an agency, that an agency is
qualified for temporary accreditation, then Sec. 96.100(b) permits the
accrediting entity to forego a site visit.
Section 96.102--Review of Temporary Accreditation Decisions
Comment: Several commenters raise concerns over the limits of
judicial and/or administrative review of a denial of full or temporary
accreditation.
Response: These rules treat denial of temporary accreditation the
same as the denial of an initial application for full accreditation or
approval. For a discussion of why this rule does not permit review of
initial denials of full or temporary accreditation, please see the
response to comments on Sec. 96.59.
Section 96.103--Oversight by Accrediting Entities
1. Comment: Several commenters think that the provision in Sec.
96.103(b) in the proposed rule allowing the accrediting entity to
assess additional fees for actual costs incurred is arbitrary because
the accrediting entity, at its discretion, can visit the agency at the
agency's expense. One commenter suggested that the Department set
parameters for extraordinary cases to protect agencies from unnecessary
fees.
Response: The Department does not believe it is appropriate to
assume that designated accrediting entities will arbitrarily conduct
site visits in order to generate fees. Accreditation fees may not
exceed actual costs, so conducting site visits will not be a financial
windfall for accrediting entities.
The Department has, however, eliminated from Sec. 96.103 language
duplicative of Sec. 96.111's authorization of charges and fees related
to site visits. The ability of an accrediting entity to charge fees for
a site visit is unaffected by this change. The Department has also
added language to Sec. 96.111(a) to clarify that an accrediting entity
may require the payment of estimated additional fees for a site visit
in advance, subject to a refund of any overcharge.
2. Comment: One commenter suggests that the Department itself
closely monitor small agencies.
Response: The accrediting entities will have primary oversight
responsibility for agencies that they have granted temporary
accreditation. The Department, nevertheless, retains oversight
responsibility for agencies of all sizes. The Department has
independent authority under Sec. 96.107 to withdraw an agency's
temporary accreditation if the agency is substantially out of
compliance with the standards in Sec. 96.104 and the accrediting
entity has failed or refused to take appropriate enforcement action, or
if the Department finds such action will protect the interests of
children, further U.S. foreign policy or national security interests,
or protect the ability of U.S. citizens to adopt children under the
Convention.
[[Page 8128]]
Section 96.105--Adverse Action Against a Temporarily Accredited Agency
by an Accrediting Entity
Comment: Comments pertaining to Sec. Sec. 96.76 and 96.77 also
relate to this temporary accreditation counterpart.
Response: Changes made to Sec. 96.105 and Sec. 96.109(c) were
made to conform to the approach taken in Sec. 96.76. Please see the
discussion under Sec. Sec. 96.76 and 96.77 for relevant comments and
responses.
Section 96.106--Review of the Withdrawal of Temporary Accreditation by
the Accrediting Entity
Comment: Comments pertaining to Sec. 96.79(a) also relate to this
section as its temporary accreditation counterpart.
Response: The Department made minor changes to Sec. 96.106(a) to
conform with the approach taken in Sec. 96.79(a).
Section 96.107--Adverse Action Against a Temporarily Accredited Agency
by the Secretary
Comment: Comments pertaining to Sec. 96.83 also relate to this
section as its temporary accreditation counterpart.
Response: The Department made conforming changes to Sec. 96.107(b)
consistent with changes that it made to Sec. 96.83(b). Please see the
discussion under Sec. 96.83 for the relevant comment and response.
Section 96.109--Effect of the Withdrawal of Temporary Accreditation by
the Accrediting Entity or the Secretary
Comment: Comments pertaining to Sec. Sec. 96.77(b) and (c) also
relate to this section as its temporary accreditation counterpart.
Response: The Department made conforming changes to Sec. 96.109(a)
and (b) consistent with changes that it made to Sec. 96.77(b) and (c).
Please see the discussion under Sec. 96.77(b) for relevant comments
and responses. In addition, the Department clarified the related
performance standard, in Sec. 96.105(k), to provide that the closure
plan must include provisions for organized closure and reimbursements
to clients, mirroring a change made to Sec. 96.33(e). Please see also
the response to comment 9 on Sec. 96.33.
V. Regulatory Review
A. Regulatory Flexibility Act/Executive Order 13272: Small Business
The Department has reviewed the final rule's impact on small
agencies and persons in accordance with the final regulatory analysis
requirements in the Regulatory Flexibility Act (RFA), 5 U.S.C. 601-612.
The RFA requires an agency to perform a final regulatory flexibility
analysis at the time that a rule is finalized to determine the
regulatory impact of the rulemaking on small entities. However, if the
agency does not believe that the rule will have a significant economic
impact on a substantial number of small entities the agency may publish
a certification in lieu of a regulatory analysis, provided that the
certification is accompanied by a factual basis. As stated in the
certification for the proposed rule there are between 420 and 600
adoption service providers, the vast majority of which are small, that
may have to comply with this rulemaking. Accordingly, the rule will
impact a substantial number of small entities. However, for the reasons
provided below, the Department does not believe that the economic
impact will be significant.
At the request of the Small Business Administration (SBA), we
included in the notice of proposed rulemaking the following questions
on small entity impact for public comment: (1) Will most small agencies
be eligible for temporary accreditation under the criteria provided in
subpart N? (2) How many agencies are likely to seek temporary
accreditation rather than full accreditation? (3) What are the
accrediting entities likely to charge the agencies for the temporary
accreditation process? (4) What are the estimated costs agencies will
have to expend to comply with the standards in subpart N? (5) Will
small agencies be negatively impacted if they are unable to qualify for
temporary accreditation? We received no comments responding
specifically to the questions posed by the SBA, but we summarize and
address below the comments which we did receive related to the impact
on small entities of this rule:
Comment: Six commenters expressed concern about accreditation fees
and believe that accreditation fees could range from $45,000 to
$100,000 per applicant.
Response: Consistent with the IAA, accrediting entities will be
authorized to charge agencies and persons fees to cover the cost of
conducting the accreditation process, which in the case of full
accreditation or approval will include: (1) Reviewing an applicant's
written application; (2) verifying the information the applicant
provided by examining underlying documentation; (3) considering written
complaints; (4) conducting off-site or in-person interviews; (5)
consulting with relevant State licensing authorities; (6) conducting a
site visit; and (7) taking adverse action and defending any legal
challenges to enforcement measures. Providing for these core duties is
unavoidable.
We have nevertheless sought to minimize the impact of
accreditation/approval fees in a number of ways that will benefit small
agencies and persons. First, there are safeguards on accrediting entity
fees in the IAA that are mirrored in the final rule. In particular, the
IAA prohibits such fees from exceeding the costs of accreditation/
approval. In addition, the Department must approve the accreditation/
approval fees assessed by accrediting entities. In setting fees, the
Department and the accrediting entities must consider the relative
size, the geographic location, and the number of Convention adoption
cases managed by the agencies or persons expected to apply, thus there
will be consideration of the impact of proposed fees on small agencies
and persons. A fee schedule submitted to the Department for approval
must contain: (1) A list of separate non-refundable fees for Convention
accreditation and Convention approval; (2) the cost of all activities
associated with the accreditation/approval cycle; and (3) the cost of
obtaining temporary accreditation services (if provided by the
accrediting entity). Also, accrediting entities will be required to
provide clear information on fees to the public, including making their
fee schedules available to the public and listing the fees to be
charged to the applicant in a contract between the parties. The
Department believes that the safeguards in the final rule will minimize
the costs of accreditation fees for small entities. The Department,
however, cannot predict or guarantee any particular range of fees prior
to designating the accrediting entities and approving their fee
schedules.
Second, small agencies may pursue the option of temporary
accreditation. Small agencies that fulfill certain criteria may be
temporarily accredited for one or two years, depending upon size. The
applicable standards for temporary accreditation are less comprehensive
than the standards for full accreditation. Also, obtaining temporary
accreditation is an abbreviated process--a site visit is optional, not
required. The Department expects the fees associated with the cost of
temporary accreditation to be less than the fees for full
accreditation.
Third, an agency or person can assist with adoptions under the
Convention without becoming accredited or approved, and can therefore
avoid paying accreditation/approval fees by acting under the
supervision of an accredited agency or approved person.
[[Page 8129]]
Finally, the IAA and the regulations exempt certain service
providers from the requirements of accreditation/approval. For example,
a social work professional or organization that performs a home study
or child background study in the United States, but is not currently
providing and has not previously provided any other adoption service in
connection with a particular Convention adoption, is an ``exempted
provider.'' Exempted providers do not have to be accredited,
temporarily accredited, approved, or supervised by a primary provider.
Thus small home study providers and individual social workers that
provide only home studies or child background studies will not have to
pay to become accredited or approved.
Comment: One commenter is concerned that private accrediting
entities will charge excessive fees for travel and accommodations
during the accreditation process.
Response: We address the costs of site visit evaluations in this
final rule. Section 96.8(b)(2) provides that separate fees based on
actual costs incurred may be charged for the travel and maintenance of
evaluators, and Sec. 96.111(a) also requires that additional fees be
paid for actual costs involved with site visits to temporarily
accredited agencies. These costs are easily verified through receipts
for travel expenses. Additionally, State licensing authorities and
nonprofit entities chosen to be accrediting entities are likely to have
travel policies that provide internal limits on payments for expenses
such as travel, meals, and accommodations. In addition, the Department
can address this issue in the agreements with the accrediting entities.
The rule provides sufficient safeguards to ensure that the travel
charges are not burdensome to small entities and to ensure the
reasonableness of charges for the travel and maintenance of site
evaluators.
Comment: Nine commenters believe that it will create great economic
hardship for small agencies and persons to comply with the standards
found in subpart F. A few commenters write that complying with the
standards of subpart F will be so costly that many small agencies and
persons could be forced to close. Other commenters are concerned that
increased costs for agencies and persons will be passed on to
prospective adoptive parent(s).
Response: The Department is aware that the cost of providing
adoption services in Convention cases will be affected by the cost of
complying with the standards in subpart F, and discussed that impact at
length in the explanatory statement to the proposed rule issued on
September 15, 2003. The proposed rule preamble at Section VI, A
contains an analysis of the impact on small entities. After considering
the public comments, the Department continues to believe that the basis
and conclusions of that analysis are sound. That analysis therefore is
hereby incorporated by reference and available at 68 FR 54064, 54089-
54090 (September 15, 2003).
We have taken a number of steps, however, in the final rule to be
responsive to the comments on the costs of compliance, while at the
same time keeping in mind the specific IAA requirements for certain
standards and the overall statutory goals of protecting the best
interests of a child and of protecting birth parents, adoptive parents,
and children from abuses. For example, we revisited and changed, to
lower the impact on small entities, the standards relating to the
following issues:
Risk assessment; primary provider's liability; waivers of
liability;
Budget and audit;
Training and education of social service personnel.
Under the final rule's standards on risk assessment and liability,
agencies and persons are not required to retain an independent provider
to conduct a risk assessment. Instead, they may use in-house personnel,
thereby reducing the cost of an assessment. Moreover, we revised
Sec. Sec. 96.45 and 96.46 so that primary providers are no longer
required to assume tort, contract, and other civil liability to the
prospective adoptive parent(s) for the supervised provider's provision
of contracted adoption services or to maintain a bond, escrow account,
or liability insurance in an amount sufficient to cover the risks of
liability arising from its work with supervised providers. In addition,
Sec. 96.39, which prohibited agencies and persons from using blanket
waivers of liability, has been changed so that agencies and persons may
ask prospective adoptive parent(s) to sign a waiver after full
disclosure of information as long as the waiver complies with
applicable State law and is limited, specific, and based on risks that
have been discussed and explained in the adoption services contract. By
changing these standards, we believe that we have decreased the risk
exposure of primary providers so that they will more easily obtain the
required insurance at a reasonable cost. In total, the revision of
these standards makes compliance easier by decreasing the cost and
burden on small agencies and persons.
With regard to budget and audit standards, we modified the language
of Sec. 96.33 to make meeting the budget standards more practicable
while still maintaining a focus on an agency's or person's financial
soundness. The proposed rule required agencies to keep three months of
cash reserves on hand. The final rule instead requires the assets on-
hand to be sufficient to meet two months of expenses and allows
agencies to satisfy the standard by including non-cash assets. In
addition, the agency or person's finances are subject to an independent
audit every four years instead of annually as initially proposed.
Requiring less cash on hand and reducing the frequency of independent
audits will enable small agencies and persons to demonstrate financial
soundness without incurring significant new costs.
We have also considered the concerns of commenters who believed
that the education and experience requirements for social service
personnel would be too costly and have made cost-saving changes. The
final rule differs from the proposed rule in that non-supervisory
employees who are conducting home studies or child background studies
are not required to hold a master's degree in social work. The final
rule requires that these personnel be authorized or licensed to
complete a home study under the laws of the State in which they
practice, meet DHS requirements for home study preparers, and be
monitored by a qualified social work supervisor. Likewise, we reduced
from 20 hours each year to 30 hours every two years the training
requirement for employees who provide adoption services that involve
clinical skills and judgment.
While some commenters also were concerned about the potential cost
of standards involving data collection, the Department did not
significantly modify the standards related to data collection. Section
104 of the IAA lists the information and data that must be collected
and reported to Congress annually. To ensure the availability of this
information, Sec. 96.43 of the rule still requires accredited agencies
and approved persons who are acting as primary providers to track
cases, to collect data, and to report the information as set forth in
the rule.
The Department also has considered input on the costs to agencies
and persons of complying with the standards in subpart F. The cost
information from commenters ranged widely--some commenters predicted
complying with subpart F could cost from $75,000 to $100,000 per agency
or person. Others suggested that a range of
[[Page 8130]]
$2,000 to $3,000 per case in increased costs that agencies and persons
would have to charge for adoption services. (Commenters were not always
clear about whether these projections included accreditation/approval
fees or just the cost of complying with the standards in subpart F.) We
reviewed the standards, and concluded that they are either required by
section 203(b) of the IAA or will otherwise further the goals of the
IAA.
In summary, the Department asserts that the economic impact on
small entities will not be significant. The final rule allows agencies
and persons to choose to be accredited or approved or to act as
supervised providers; largely exempts certain types of very small
providers, specifically home study and child background study
preparers; includes a special temporary accreditation procedure just
for small agencies; and uses a substantial compliance structure, so
that entities are not required to comply fully with every single
standard in order to be accredited or approved. The Department hereby
certifies that this rule will not have a significant economic impact on
a substantial number of small entities.
B. The Small Business Regulatory Enforcement Fairness Act of 1996
This rule is not a major rule, as defined by 5 U.S.C. 804, for
purposes of congressional review of agency rulemaking under the Small
Business Regulatory Enforcement Fairness Act of 1996, Public Law 104-
121. This rule will not result in an annual effect on the economy of
$100 million or more; a major increase in costs or prices; or,
significant adverse effects on competition, employment, investment,
productivity, innovation, or on the ability of United States-based
companies to compete with foreign-based companies in domestic and
import markets.
C. The Unfunded Mandates Reform Act of 1995
Section 202 of the Unfunded Mandates Reform Act of 1995 (UFMA),
Public Law 104-4; 109 Stat. 48; 2 U.S.C. 1532, generally requires
agencies to prepare a statement, including cost-benefit and other
analyses, before proposing any rule that may result in an annual
expenditure of $100 million or more by State, local, or tribal
governments, or by the private sector. Section 4 of UFMA, 2 U.S.C.
1503, excludes legislation necessary for implementation of treaty
obligations. The IAA falls within this exclusion because it is the
implementing legislation for the Convention. In any event, this rule
will not result in the expenditure by State, local, or tribal
governments, in the aggregate, or by the private sector, of $100
million or more in any year. Moreover, because this rule will not
significantly or uniquely affect small governments, section 203 of
UFMA, 2 U.S.C. 1533, does not require preparation of a small government
agency plan in connection with it.
D. Executive Order 13132: Federalism
A rule has federalism implications under Executive Order 13132 if
it has a substantial direct effect on the States, on the relationship
between the national government and the States, or on the distribution
of power and responsibilities among the various levels of government.
The federalism implications of the rule in light of the requirements of
the IAA are discussed in Section IV paragraph (D) of the proposed rule
in the preamble. In light of that analysis, the Department finds that
this regulation will not have substantial direct effects on the States,
on the relationship between the national government and the States, or
on the distribution of power and responsibilities among the various
levels of government. Therefore, the Department has determined that
this rule does not have sufficient federalism implications to require
consultations or to warrant the preparation of a federalism summary
impact statement under section 6 of Executive Order 13132.
Comment: Some commenters argued that State licensing should be
sufficient for Convention accreditation and that the Department should
not require agencies to become accredited at the Federal level, while
others argued that the regulations deferred too much to State licensing
of agencies.
Response: Federal accreditation standards for intercountry
adoptions under the Convention are required to implement the Convention
and the IAA; State licensing or authorization to provide adoption
services is not sufficient to meet the requirements of the Convention
or the IAA. While the Department considered State licensing practices
in crafting the rule, as required by section 203(a)(2) of the IAA, the
rule contains Federal standards related specifically to the minimum
standards of section 203(b) of the IAA. These IAA-related standards,
and standards related to compliance with the Convention, may or may not
be part of a particular State's licensing requirements for adoption
agencies.
E. Executive Order 12866: Regulatory Review
This regulation has been reviewed by the Office of Management and
Budget.
F. Executive Order 12988: Civil Justice Reform
The Department has reviewed these regulations in light of sections
3(a) and 3(b)(2) of Executive Order 12988 to eliminate ambiguity,
minimize litigation risks, establish clear legal standards, and reduce
burden. The Department has made every reasonable effort to ensure
compliance with the requirements in Executive Order 12988.
G. The Paperwork Reduction Act of 1995
This rule does not impose information collection requirements
subject to the Paperwork Reduction Act of 1995 (PRA), 44 U.S.C.,
Chapter 35. Section 503(c) of the IAA specifically exempts from the PRA
information collection for several purposes, including information
collections for purposes of IAA section 202(b)(4), which relates to
data collection, records maintenance, and reporting by the accrediting
entities. In accord with this and the other IAA exemptions from the
PRA, at the time of the proposed rule the Department determined that
all of the collections of information contained in the rule were exempt
from PRA requirements, with the exception of the third-party
disclosures contained in Sec. Sec. 96.91 and 96.92 of subpart M. The
Department has modified Sec. 96.91 and Sec. 96.92 and, after re-
examining the language, purpose, and history of IAA section 503(c)'s
broad PRA exemption addressing the information collection and
management duties of accrediting entities, has concluded that the
disclosure requirements in these sections, like the rest of the
information collections in this rule, are exempted from the PRA. The
explanation of the IAA exemptions to the PRA were explained in the
Department's preamble to the proposed rule published on September 15,
2003 (Section IV, paragraph F), which is incorporated herein by
reference, to the extent that it is consistent with our conclusion that
all collections in the final rule are exempt from the PRA. Consistent
with this conclusion, the request for approval of an information
collection that was submitted to OMB for review and clearance
concurrent with the notice of proposed rulemaking has been withdrawn.
The principal practical effect of recognizing this exemption is that
the disclosure requirements under Sec. 96.91 and Sec. 96.92 will not
have to be reviewed under the
[[Page 8131]]
PRA every three years in order to remain effective.
Although the PRA does not apply to these sections as they have been
revised, the Department has remained attentive to the regulatory burden
issues associated with them, and has considered the one comment
received on the burden estimates for the third-party disclosure
requirements contained in Sec. Sec. 96.91 and 96.92. The commenter
suggests that no accurate estimate of PRA burden hours can be made, and
also suggests increasing the estimate of burden hours.
The Department did subsequent research and revised its burden
estimates. We acknowledge that, at this time, it is difficult to
estimate burdens accurately without knowing the exact numbers of
agencies and persons that will apply for accreditation or approval.
Nevertheless, we used information from potential accrediting entities
to estimate the anticipated burden of the third-party disclosure duties
required under subpart M. At the time we did the original estimates, we
believed we might have up to nine accrediting entities. We currently
have six candidates eligible to become accrediting entities. In
response to this comment, we contacted all six current accrediting
entity candidates and asked them to estimate the additional burden in
hours and dollars to comply with the third-party disclosure
requirements set forth in Sec. 96.91 (Dissemination of information to
the public about accreditation and approval status) and Sec. 96.92
(Dissemination of information to the public about complaints against
accredited agencies and approved persons) of the proposed rule. Those
estimates ranged from less than 26 hours per year to as high as 459
hours per year. The Department thought it prudent to be conservative,
so we used the highest estimate we were given, 459 hours, which added
an additional 94 hours per year to our previous estimate. In addition,
using the highest cost estimate, we added an additional $1,924.00 per
year to our previous estimate for yearly maintenance costs, for an
estimated annual maintenance cost burden of $12,879.00. While these
average burden estimates each increased slightly, the overall burden
estimate went down because the number of eligible accrediting entity
candidates has decreased from 9 to 6. Therefore, each estimate was
multiplied by 6, rather than 9, to get our total annual burden
estimates. Thus, our new burden estimates for the proposed rule would
be: 2754 hours per year (459 hours multiplied by 6); $63,978.00 for
total start-up/capital costs ($10,663.00 multiplied by 6); and
$77,274.00 in annual operation and maintenance costs ($12,879.00
multiplied by 6). The burden of the final rule would not be any greater
and is likely to be significantly less because the final rule does not
require the preparation of a summary of the accreditation or approval
study.
H. Congressional Review
This rule is not a major rule as defined in 5 U.S.C. Chapter 8.
I. The Treasury and General Government Appropriations Act of 1999--
Assessment of Federal Regulations and Policies on Families
In light of the subject matter of these regulations and section 654
of the Treasury and General Government Appropriations Act of 1999,
Public Law 105-277, 112 Stat. 2681 (1998), the Department has assessed
the impact of these regulations on family well-being in accordance with
section 654(c) of that Act. This rule implements the Convention and the
IAA requirements related to the accreditation and approval of adoption
service providers who provide adoption services to families involved in
an intercountry adoption. This rule will promote child safety, child
and family well-being, and stability for children in need of a
permanent family placement through intercountry adoption. The rule will
help to ensure that agencies and persons are taking appropriate steps
to protect children and to strengthen and support families involved in
the intercountry adoption process.
Comment: The Department received several comments on the effect of
the regulation on family well-being. Commenters point out that the rule
will promote child safety and family well-being because the rule is
consistent with the overall goal of the Convention, which is to place
children eligible for adoption in permanent family placements. Others
were concerned that the Convention was not a good idea because they
believe adoptions from a country typically decrease substantially when
a country becomes a Convention country, even though there are still
children eligible for an intercountry adoption. Other commenters were
concerned about potential increased costs of adoptions and the negative
effect such cost increases might have on the availability of adoption
as an option for families.
Response: We cannot act contrary to the Convention and the IAA. We
note that the Convention's principles and international norms are
consistent with section 654's focus on family well-being. As for the
impact of costs on adoptive families, we have revised the rule in many
sections to lower the costs of compliance while at the same time trying
to ensure that the rule contains standards that are required under the
IAA and/or further its objectives.
List of Subjects in 22 CFR Part 96
Adoption and foster care, International agreements, Reporting and
recordkeeping requirements.
0
Accordingly, the Department adds new part 96 to title 22 of the CFR,
chapter I, subchapter J to read as follows:
PART 96--ACCREDITATION OF AGENCIES AND APPROVAL OF PERSONS UNDER
THE INTERCOUNTRY ADOPTION ACT OF 2000 (IAA)
Subpart A--General Provisions
Sec.
96.1 Purpose.
96.2 Definitions.
96.3 [Reserved].
Subpart B--Selection, Designation, and Duties of Accrediting Entities
96.4 Designation of accrediting entities by the Secretary.
96.5 Requirement that the accrediting entity be a nonprofit or
public entity.
96.6 Performance criteria for designation as an accrediting entity.
96.7 Authorities and responsibilities of an accrediting entity.
96.8 Fees charged by accrediting entities.
96.9 Agreement between the Secretary and the accrediting entity.
96.10 Suspension or cancellation of the designation of an
accrediting entity by the Secretary.
96.11 [Reserved].
Subpart C--Accreditation and Approval Requirements for the Provision of
Adoption Services
96.12 Authorized adoption service providers.
96.13 Circumstances in which accreditation, approval, or supervision
is not required.
96.14 Providing adoption services using other providers.
96.15 Examples.
96.16 Public domestic authorities.
96.17 Effective date of accreditation and approval requirements.
Subpart D--Application Procedures for Accreditation and Approval
96.18 Scope.
96.19 Special provision for agencies and persons seeking to be
accredited or approved as of the time the Convention enters into
force for the United States.
96.20 First-time application procedures for accreditation and
approval.
96.21 Choosing an accrediting entity.
96.22 [Reserved].
[[Page 8132]]
Subpart E--Evaluation of Applicants for Accreditation and Approval
96.23 Scope.
96.24 Procedures for evaluating applicants for accreditation or
approval.
96.25 Access to information and documents requested by the
accrediting entity.
96.26 Protection of information and documents by the accrediting
entity.
96.27 Substantive criteria for evaluating applicants for
accreditation or approval.
96.28 [Reserved].
Subpart F--Standards for Convention Accreditation and Approval
96.29 Scope.
Licensing and Corporate Governance
96.30 State licensing.
96.31 Corporate Structure.
96.32 Internal structure and oversight.
Financial and Risk Management
96.33 Budget, audit, insurance, and risk assessment requirements.
96.34 Compensation.
Ethical Practices and Responsibilities
96.35 Suitability of agencies and persons to provide adoption
services consistent with the Convention.
96.36 Prohibition on child buying.
Professional Qualifications and Training for Employees
96.37 Education and experience requirements for social service
personnel.
96.38 Training requirements for social service personnel.
Information Disclosure, Fee Practices, and Quality Control Policies and
Practices
96.39 Information disclosure and quality control practices.
96.40 Fee policies and procedures.
Responding to Complaints and Records and Reports Management
96.41 Procedures for responding to complaints and improving service
delivery.
96.42 Retention, preservation, and disclosure of adoption records.
96.43 Case tracking, data management, and reporting.
Service Planning and Delivery
96.44 Acting as primary provider.
96.45 Using supervised providers in the United States.
96.46 Using providers in Convention countries.
Standards for Cases in Which a Child is Immigrating to the United
States (Incoming Cases)
96.47 Preparation of home studies in incoming cases.
96.48 Preparation and training of prospective adoptive parent(s) in
incoming cases.
96.49 Provision of medical and social information in incoming cases.
96.50 Placement and post-placement monitoring until final adoption
in incoming cases.
96.51 Post-adoption services in incoming cases.
96.52 Performance of Convention communication and coordination
functions in incoming cases.
Standards for Cases in Which a Child is Emigrating From the United
States (Outgoing Cases)
96.53 Background studies on the child and consents in outgoing
cases.
96.54 Placement standards in outgoing cases.
96.55 Performance of Convention communication and coordination
functions in outgoing cases.
96.56 [Reserved].
Subpart G--Decisions on Applications for Accreditation or Approval
96.57 Scope.
96.58 Notification of accreditation and approval decisions.
96.59 Review of decisions to deny accreditation or approval.
96.60 Length of accreditation or approval period.
96.61 [Reserved].
Subpart H--Renewal of Accreditation or Approval
96.62 Scope.
96.63 Renewal of accreditation or approval.
96.64 [Reserved].
Subpart I--Routine Oversight by Accrediting Entities
96.65 Scope.
96.66 Oversight of accredited agencies and approved persons by the
accrediting entity.
96.67 [Reserved].
Subpart J--Oversight Through Review of Complaints
96.68 Scope.
96.69 Filing of complaints against accredited agencies and approved
persons.
96.70 Operation of the Complaint Registry.
96.71 Review by the accrediting entity of complaints against
accredited agencies and approved persons.
96.72 Referral of complaints to the Secretary and other authorities.
96.73 [Reserved].
Subpart K--Adverse Action by the Accrediting Entity
96.74 Scope.
96.75 Adverse action against accredited agencies or approved persons
not in substantial compliance.
96.76 Procedures governing adverse action by the accrediting entity.
96.77 Responsibilities of the accredited agency, approved person,
and accrediting entity following adverse action by the accrediting
entity.
96.78 Accrediting entity procedures to terminate adverse action.
96.79 Administrative or judicial review of adverse action by the
accrediting entity.
96.80 [Reserved].
Subpart L--Oversight of Accredited Agencies and Approved Persons by the
Secretary
96.81 Scope.
96.82 The Secretary's response to actions by the accrediting entity.
96.83 Suspension or cancellation of accreditation or approval by the
Secretary.
96.84 Reinstatement of accreditation or approval after suspension or
cancellation by the Secretary.
96.85 Temporary and permanent debarment by the Secretary.
96.86 Length of debarment period and reapplication after temporary
debarment.
96.87 Responsibilities of the accredited agency, approved person,
and accrediting entity following suspension, cancellation, or
debarment by the Secretary.
96.88 Review of suspension, cancellation, or debarment by the
Secretary.
96.89 [Reserved].
Subpart M--Dissemination and Reporting of Information by Accrediting
Entities
96.90 Scope.
96.91 Dissemination of information to the public about accreditation
and approval status.
96.92 Dissemination of information to the public about complaints
against accredited agencies and approved persons.
96.93 Reports to the Secretary about accredited agencies and
approved persons and their activities.
96.94 [Reserved].
Subpart N--Procedures and Standards Relating to Temporary Accreditation
96.95 Scope.
96.96 Eligibility requirements for temporary accreditation.
96.97 Application procedures for temporary accreditation.
96.98 Length of temporary accreditation period.
96.99 Converting an application for temporary accreditation to an
application for full accreditation.
96.100 Procedures for evaluating applicants for temporary
accreditation.
96.101 Notification of temporary accreditation decisions.
96.102 Review of temporary accreditation decisions.
96.103 Oversight by accrediting entities.
96.104 Performance standards for temporary accreditation.
96.105 Adverse action against a temporarily accredited agency by an
accrediting entity.
96.106 Review of the withdrawal of temporary accreditation by an
accrediting entity.
96.107 Adverse action against a temporarily accredited agency by the
Secretary.
96.108 Review of the withdrawal of temporary accreditation by the
Secretary.
96.109 Effect of the withdrawal of temporary accreditation by the
accrediting entity or the Secretary.
96.110 Dissemination and reporting of information about temporarily
accredited agencies.
96.111 Fees charged for temporary accreditation.
Authority: The Convention on Protection of Children and Co-
operation in Respect of
[[Page 8133]]
Intercountry Adoption (done at the Hague, May 29, 1993), S. Treaty
Doc. 105-51 (1998), 1870 U.N.T.S. 167 (Reg. No. 31922 (1993)); The
Intercountry Adoption Act of 2000, 42 U.S.C. 14901-14954.
Subpart A--General Provisions
Sec. 96.1 Purpose.
This part provides for the accreditation and approval of agencies
and persons pursuant to the Intercountry Adoption Act of 2000 (Pub. L.
106-279, 42 U.S.C. 14901-14954). Subpart B of this part establishes the
procedures for the selection and designation of accrediting entities to
perform the accreditation and approval functions. Subparts C through H
establish the general procedures and standards for accreditation and
approval of agencies and persons (including renewal of accreditation or
approval). Subparts I through M address the oversight of accredited or
approved agencies and persons. Subpart N establishes special rules
relating to small agencies that wish to seek temporary accreditation.
Sec. 96.2 Definitions.
As used in this part, the term:
Accredited agency means an agency that has been accredited by an
accrediting entity, in accordance with the standards in subpart F of
this part, to provide adoption services in the United States in cases
subject to the Convention. It does not include a temporarily accredited
agency.
Accrediting entity means an entity that has been designated by the
Secretary to accredit agencies (including temporarily accredit) and/or
to approve persons for purposes of providing adoption services in the
United States in cases subject to the Convention.
Adoption means the judicial or administrative act that establishes
a permanent legal parent-child relationship between a minor and an
adult who is not already the minor's legal parent and terminates the
legal parent-child relationship between the adoptive child and any
former parent(s).
Adoption record means any record, information, or item related to a
specific Convention adoption of a child received or maintained by an
agency, person, or public domestic authority, including, but not
limited to, photographs, videos, correspondence, personal effects,
medical and social information, and any other information about the
child. An adoption record does not include a record generated by an
agency, person, or a public domestic authority to comply with the
requirement to file information with the Case Registry on adoptions not
subject to the Convention pursuant to section 303(d) of the IAA (42
U.S.C. 14932(d)).
Adoption service means any one of the following six services:
(1) Identifying a child for adoption and arranging an adoption;
(2) Securing the necessary consent to termination of parental
rights and to adoption;
(3) Performing a background study on a child or a home study on a
prospective adoptive parent(s), and reporting on such a study;
(4) Making non-judicial determinations of the best interests of a
child and the appropriateness of an adoptive placement for the child;
(5) Monitoring a case after a child has been placed with
prospective adoptive parent(s) until final adoption; or
(6) When necessary because of a disruption before final adoption,
assuming custody and providing (including facilitating the provision
of) child care or any other social service pending an alternative
placement.
Agency means a private, nonprofit organization licensed to provide
adoption services in at least one State. (For-profit entities and
individuals that provide adoption services are considered ``persons''
as defined in this section.)
Approved home study means a review of the home environment of the
child's prospective adoptive parent(s) that has been:
(1) Completed by an accredited agency or temporarily accredited
agency; or
(2) Approved by an accredited agency or temporarily accredited
agency.
Approved person means a person that has been approved, in
accordance with the standards in subpart F of this part, by an
accrediting entity to provide adoption services in the United States in
cases subject to the Convention.
Best interests of the child shall have the meaning given to it by
the law of the State with jurisdiction to decide whether a particular
adoption or adoption-related action is in a child's best interests.
Case Registry means the tracking system jointly established by the
Secretary and DHS to comply with section 102(e) of the IAA (42 U.S.C.
14912).
Central Authority means the entity designated as such under Article
6(1) of the Convention by any Convention country or, in the case of the
United States, the United States Department of State.
Central Authority function means any duty required under the
Convention to be carried out, directly or indirectly, by a Central
Authority.
Child welfare services means services, other than those defined as
``adoption services'' in this section, that are designed to promote and
protect the well-being of a family or child. Such services include, but
are not limited to, recruiting and identifying adoptive parent(s) in
cases of disruption (but not assuming custody of the child), arranging
or providing temporary foster care for a child in connection with a
Convention adoption or providing educational, social, cultural,
medical, psychological assessment, mental health, or other health-
related services for a child or family in a Convention adoption case.
Competent authority means a court or governmental authority of a
foreign country that has jurisdiction and authority to make decisions
in matters of child welfare, including adoption.
Complaint Registry means the system created by the Secretary
pursuant to Sec. 96.70 to receive, distribute, and monitor complaints
relevant to the accreditation or approval status of agencies and
persons.
Convention means the Convention on Protection of Children and Co-
operation in Respect of Intercountry Adoption done at The Hague on May
29, 1993.
Convention adoption means the adoption of a child resident in a
Convention country by a United States citizen, or an adoption of a
child resident in the United States by an individual or individuals
residing in a Convention country, when, in connection with the
adoption, the child has moved or will move between the United States
and the Convention country.
Convention country means a country that is a party to the
Convention and with which the Convention is in force for the United
States.
Country of origin means the country in which a child is a resident
and from which a child is emigrating in connection with his or her
adoption.
Debarment means the loss of accreditation or approval by an agency
or person as a result of an order of the Secretary under which the
agency or person is temporarily or permanently barred from
accreditation or approval.
DHS means the Department of Homeland Security and encompasses the
former Immigration and Naturalization Service (INS) or any successor
entity designated by the Secretary of Homeland Security to assume the
functions vested in the Attorney General by the IAA relating to the
INS's responsibilities.
Disruption means the interruption of a placement for adoption
during the post-placement period.
[[Page 8134]]
Dissolution means the termination of the adoptive parent(s)'
parental rights after an adoption.
Exempted provider means a social work professional or organization
that performs a home study on prospective adoptive parent(s) or a child
background study (or both) in the United States in connection with a
Convention adoption (including any reports or updates), but that is not
currently providing and has not previously provided any other adoption
service in the case.
IAA means the Intercountry Adoption Act of 2000, Public Law 106-279
(2000) (42 U.S.C. 14901-14954), as amended from time to time.
Legal custody means having legal responsibility for a child under
the order of a court of law, a public domestic authority, competent
authority, public foreign authority, or by operation of law.
Legal services means services, other than those defined in this
section as ``adoption services,'' that relate to the provision of legal
advice and information and to the drafting of legal instruments. Such
services include, but are not limited to, drawing up contracts, powers
of attorney, and other legal instruments; providing advice and counsel
to adoptive parent(s) on completing DHS or Central Authority forms; and
providing advice and counsel to accredited agencies, temporarily
accredited agencies, approved persons, or prospective adoptive
parent(s) on how to comply with the Convention, the IAA, and the
regulations implementing the IAA.
Person means an individual or a private, for-profit entity
(including a corporation, company, association, firm, partnership,
society, or joint stock company) providing adoption services. It does
not include public domestic authorities or public foreign authorities.
Post-adoption means after an adoption; in cases in which an
adoption occurs in a Convention country and is followed by a re-
adoption in the United States, it means after the adoption in the
Convention country.
Post-placement means after a grant of legal custody or guardianship
of the child to the prospective adoptive parent(s), or to a custodian
for the purpose of escorting the child to the identified prospective
adoptive parent(s), and before an adoption.
Primary provider means the accredited agency, temporarily
accredited agency, or approved person that is identified pursuant to
Sec. 96.14 as responsible for ensuring that all six adoption services
are provided and for supervising and being responsible for supervised
providers where used.
Public domestic authority means an authority operated by a State,
local, or tribal government within the United States.
Public foreign authority means an authority operated by a national
or subnational government of a Convention country.
Secretary means the Secretary of State, the Assistant Secretary of
State for Consular Affairs, or any other Department of State official
exercising the Secretary of State's authority under the Convention, the
IAA, or any regulations implementing the IAA, pursuant to a delegation
of authority.
State means the fifty States, the District of Columbia, the
Commonwealth of Puerto Rico, the Commonwealth of the Northern Mariana
Islands, Guam, and the U.S. Virgin Islands.
Supervised provider means any agency, person, or other non-
governmental entity, including any foreign entity, regardless of
whether it is called a facilitator, agent, attorney, or by any other
name, that is providing one or more adoption services in a Convention
case under the supervision and responsibility of an accredited agency,
temporarily accredited agency, or approved person that is acting as the
primary provider in the case.
Temporarily accredited agency means an agency that has been
accredited on a temporary basis by an accrediting entity, in accordance
with the standards in subpart N of this part, to provide adoption
services in the United States in cases subject to the Convention. It
does not include an accredited agency.
Sec. 96.3 [Reserved].
Subpart B--Selection, Designation, and Duties of Accrediting
Entities
Sec. 96.4 Designation of accrediting entities by the Secretary.
(a) The Secretary, in the Secretary's discretion, will designate
one or more entities that meet the criteria set forth in Sec. 96.5 to
perform the accreditation (including temporary accreditation) and/or
approval functions. Each accrediting entity's designation will be set
forth in an agreement between the Secretary and the accrediting entity.
The agreement will govern the accrediting entity's operations. The
agreements will be published in the Federal Register.
(b) The Secretary's designation may authorize an accrediting entity
to accredit (including temporarily accredit) agencies, to approve
persons, or to both accredit agencies and approve persons. The
designation may also limit the accrediting entity's geographic
jurisdiction or impose other limits on the entity's jurisdiction.
(c) A public entity may only be designated to accredit agencies and
approve persons that are located in the public entity's State.
Sec. 96.5 Requirement that accrediting entity be a nonprofit or
public entity.
An accrediting entity must qualify as either:
(a) An organization described in section 501(c)(3) of the Internal
Revenue Code of 1986, as amended, that has expertise in developing and
administering standards for entities providing child welfare services;
or
(b) A public entity (other than a Federal entity), including, but
not limited to, any State or local government or governmental unit or
any political subdivision, agency, or instrumentality thereof, that is
responsible for licensing adoption agencies in a State and that has
expertise in developing and administering standards for entities
providing child welfare services.
Sec. 96.6 Performance criteria for designation as an accrediting
entity.
An entity that seeks to be designated as an accrediting entity must
demonstrate to the Secretary:
(a) That it has a governing structure, the human and financial
resources, and systems of control adequate to ensure its reliability;
(b) That it is capable of performing the accreditation or approval
functions or both on a timely basis and of administering any renewal
cycle authorized under Sec. 96.60;
(c) That it can monitor the performance of agencies it has
accredited or temporarily accredited and persons it has approved
(including their use of any supervised providers) to ensure their
continued compliance with the Convention, the IAA, and the regulations
implementing the IAA;
(d) That it has the capacity to take appropriate adverse actions
against agencies it has accredited or temporarily accredited and
persons it has approved;
(e) That it can perform the required data collection, reporting,
and other similar functions;
(f) Except in the case of a public entity, that it operates
independently of any agency or person that provides adoption services,
and of any membership organization that includes agencies or persons
that provide adoption services;
(g) That it has the capacity to conduct its accreditation,
temporary accreditation, and approval functions fairly and impartially;
[[Page 8135]]
(h) That it can comply with any conflict-of-interest prohibitions
set by the Secretary in its agreement;
(i) That it prohibits conflicts of interest with agencies or
persons or with any membership organization that includes agencies or
persons that provide adoption services; and
(j) That it prohibits its employees or other individuals acting as
site evaluators, including, but not limited to, volunteer site
evaluators, from becoming employees or supervised providers of an
agency or person for at least one year after they have evaluated such
agency or person for accreditation, temporary accreditation, or
approval.
Sec. 96.7 Authorities and responsibilities of an accrediting entity.
(a) An accrediting entity may be authorized by the Secretary to
perform some or all of the following functions:
(1) Determining whether agencies are eligible for accreditation
and/or temporary accreditation;
(2) Determining whether persons are eligible for approval;
(3) Overseeing accredited agencies, temporarily accredited
agencies, and/or approved persons by monitoring their compliance with
applicable requirements;
(4) Investigating and responding to complaints about accredited
agencies, temporarily accredited agencies, and approved persons
(including their use of supervised providers);
(5) Taking adverse action against an accredited agency, temporarily
accredited agency, or approved person, and/or referring an accredited
agency, temporarily accredited agency, or approved person for possible
action by the Secretary;
(6) Determining whether accredited agencies and approved persons
are eligible for renewal of their accreditation or approval on a cycle
consistent with Sec. 96.60;
(7) Collecting data from accredited agencies, temporarily
accredited agencies, and approved persons, maintaining records, and
reporting information to the Secretary, State courts, and other
entities; and
(8) Assisting the Secretary in taking appropriate action to help an
agency or person in transferring its Convention cases and adoption
records.
(b) The Secretary may require the accrediting entity:
(1) To utilize the Complaint Registry as provided in subpart J of
this part; and
(2) To fund a portion of the costs of operating the Complaint
Registry with fees collected by the accrediting entity pursuant to the
schedule of fees approved by the Secretary as provided in Sec. 96.8.
(c) An accrediting entity must perform all responsibilities in
accordance with the Convention, the IAA, the regulations implementing
the IAA, and its agreement with the Secretary.
Sec. 96.8 Fees charged by accrediting entities.
(a) An accrediting entity may charge fees for accreditation or
approval services under this part only in accordance with a schedule of
fees approved by the Secretary. Before approving a schedule of fees
proposed by an accrediting entity, or subsequent proposed changes to an
approved schedule, the Secretary will require the accrediting entity to
demonstrate:
(1) That its proposed schedule of fees reflects appropriate
consideration of the relative size and geographic location and volume
of Convention cases of the agencies or persons it expects to serve;
(2) That the total fees the accrediting entity expects to collect
under the schedule of fees will not exceed the full costs of
accreditation or approval under this part (including, but not limited
to, costs for completing the accreditation or approval process,
complaint review and investigation, routine oversight and enforcement,
and other data collection and reporting activities).
(b) The schedule of fees must:
(1) Establish separate non-refundable fees for Convention
accreditation and Convention approval;
(2) Include in each fee for full Convention accreditation or
approval the costs of all activities associated with the accreditation
or approval cycle, including but not limited to, costs for completing
the accreditation or approval process, complaint review and
investigation, routine oversight and enforcement, and other data
collection and reporting activities, except that separate fees based on
actual costs incurred may be charged for the travel and maintenance of
evaluators; and
(3) If the accrediting entity provides temporary accreditation
services, include fees as required by Sec. 96.111 for agencies seeking
temporary accreditation under subpart N of this part.
(c) An accrediting entity must make its approved schedule of fees
available to the public, including prospective applicants for
accreditation or approval, upon request. At the time of application,
the accrediting entity must specify the fees to be charged to the
applicant in a contract between the parties and must provide notice to
the applicant that no portion of the fee will be refunded if the
applicant fails to become accredited or approved.
(d) Nothing in this section shall be construed to provide a private
right of action to challenge any fee charged by an accrediting entity
pursuant to a schedule of fees approved by the Secretary.
Sec. 96.9 Agreement between the Secretary and the accrediting entity.
An accrediting entity must perform its functions pursuant to a
written agreement with the Secretary that will be published in the
Federal Register. The agreement will address:
(a) The responsibilities and duties of the accrediting entity;
(b) The method by which the costs of delivering the accreditation,
temporary accreditation, or approval services may be recovered through
the collection of fees from those seeking accreditation, temporary
accreditation, or approval, and how the entity's schedule of fees will
be approved;
(c) How the accrediting entity will address complaints about
accredited agencies, temporarily accredited agencies, and approved
persons (including their use of supervised providers) and complaints
about the accrediting entity itself;
(d) Data collection requirements;
(e) Matters of communication and accountability between both the
accrediting entity and the applicant(s) and between the accrediting
entity and the Secretary; and
(f) Other matters upon which the parties have agreed.
Sec. 96.10 Suspension or cancellation of the designation of an
accrediting entity by the Secretary.
(a) The Secretary will suspend or cancel the designation of an
accrediting entity if the Secretary concludes that it is substantially
out of compliance with the Convention, the IAA, the regulations
implementing the IAA, other applicable laws, or the agreement with the
Secretary. Complaints regarding the performance of the accrediting
entity may be submitted to the Department of State, Bureau of Consular
Affairs. The Secretary will consider complaints in determining whether
an accrediting entity's designation should be suspended or canceled.
(b) The Secretary will notify an accrediting entity in writing of
any deficiencies in the accrediting entity's performance that could
lead to the suspension or cancellation of its designation, and will
provide the accrediting entity with an opportunity to demonstrate that
suspension or cancellation is unwarranted, in accordance with
procedures established in the agreement entered into pursuant to Sec.
96.9.
[[Page 8136]]
(c) An accrediting entity may be considered substantially out of
compliance under circumstances that include, but are not limited to:
(1) Failing to act in a timely manner when presented with evidence
that an accredited agency or approved person is substantially out of
compliance with the standards in subpart F of this part or a
temporarily accredited agency is substantially out of compliance with
the standards in Sec. 96.104;
(2) Accrediting or approving significant numbers of agencies or
persons whose performance results in intervention of the Secretary for
the purpose of suspension, cancellation, or debarment;
(3) Failing to perform its responsibilities fairly and objectively;
(4) Violating prohibitions on conflicts of interest;
(5) Failing to meet its reporting requirements;
(6) Failing to protect information or documents that it receives in
the course of performing its responsibilities; and
(7) Failing to monitor frequently and carefully the compliance of
accredited agencies, temporarily accredited agencies, and approved
persons with the home study requirements of the Convention, section
203(b)(1)(A)(ii) of the IAA (42 U.S.C. 14923(b)(1)(A)(ii)), and Sec.
96.47.
(d) An accrediting entity that is subject to a final action of
suspension or cancellation may petition the United States District
Court for the District of Columbia or the United States district court
in the judicial district in which the accrediting entity is located to
set aside the action as provided in section 204(d) of the IAA (42
U.S.C. 14924(d)).
Sec. 96.11 [Reserved].
Subpart C--Accreditation and Approval Requirements for the
Provision of Adoption Services
Sec. 96.12 Authorized adoption service providers.
(a) Once the Convention has entered into force for the United
States, except as provided in section 505(b) of the IAA (relating to
transitional cases), an agency or person may not offer, provide, or
facilitate the provision of any adoption service in the United States
in connection with a Convention adoption unless it is:
(1) An accredited agency, a temporarily accredited agency, or an
approved person;
(2) A supervised provider; or
(3) An exempted provider, if the exempted provider's home study or
child background study will be reviewed and approved by an accredited
agency or temporarily accredited agency pursuant to Sec. 96.47(c) or
96.53(b).
(b) A public domestic authority may also offer, provide, or
facilitate the provision of any such adoption service.
(c) Neither conferral nor maintenance of accreditation, temporary
accreditation, or approval, nor status as an exempted or supervised
provider, nor status as a public domestic authority shall be construed
to imply, warrant, or establish that, in any specific case, an adoption
service has been provided consistently with the Convention, the IAA, or
the regulations implementing the IAA. Conferral and maintenance of
accreditation, temporary accreditation, or approval under this part
establishes only that the accrediting entity has concluded, in
accordance with the standards and procedures of this part, that the
agency or person conducts adoption services in substantial compliance
with the applicable standards set forth in this part; it is not a
guarantee that in any specific case the accredited agency, temporarily
accredited agency, or approved person is providing adoption services
consistently with the Convention, the IAA, the regulations implementing
the IAA, or any other applicable law, whether Federal, State, or
foreign. Neither the Secretary nor any accrediting entity shall be
responsible for any acts of an accredited agency, temporarily
accredited agency, approved person, exempted provider, supervised
provider, or other entity providing services in connection with a
Convention adoption.
Sec. 96.13 Circumstances in which accreditation, approval, or
supervision is not required.
(a) Home studies and child background studies. Home studies and
child background studies, when performed by exempted providers, may be
performed without accreditation, temporary accreditation, approval, or
supervision; provided, however, that an exempted provider's home study
must be approved by an accredited agency or temporarily accredited
agency in accordance with Sec. 96.47(c), and an exempted provider's
child background study must be approved by an accredited agency or
temporarily accredited agency in accordance with Sec. 96.53(b).
(b) Child welfare services. An agency or person does not need to be
accredited, temporarily accredited, approved, or operate as a
supervised provider if it is providing only child welfare services, and
not providing any adoption services, in connection with a Convention
adoption. If the agency or person provides both a child welfare service
and any adoption service in the United States in a Convention adoption
case, it must be accredited, temporarily accredited, or approved or
operate as a supervised provider unless the only adoption service
provided is preparation of a home study and/or a child background
study.
(c) Legal services. An agency or person does not need to be
accredited, temporarily accredited, approved, or to operate as a
supervised provider if it is providing only legal services, and not
providing any adoption services, in connection with a Convention
adoption. If the agency or person provides both a legal service and any
adoption service in the United States in a Convention adoption case, it
must be accredited, temporarily accredited, or approved or operate as a
supervised provider unless the only adoption service provided is
preparation of a home study and/or a child background study. Nothing in
this part shall be construed:
(1) To permit an attorney to provide both legal services and
adoption services in an adoption case where doing so is prohibited by
State law; or
(2) To require any attorney who is providing one or more adoption
services as part of his or her employment by a public domestic
authority to be accredited or approved or operate as a supervised
provider.
(d) Prospective adoptive parent(s) acting on own behalf.
Prospective adoptive parent(s) may act on their own behalf without
being accredited, temporarily accredited, or approved unless so acting
is prohibited by State law or the law of the Convention country. In the
case of a child immigrating to the United States in connection with his
or her adoption, such conduct must be permissible under the laws of the
State in which the prospective adoptive parent(s) reside and the laws
of the Convention country from which the parent(s) seek to adopt. In
the case of a child emigrating from the United States in connection
with his or her adoption, such conduct must be permissible under the
laws of the State where the child resides and the laws of the
Convention country in which the parent(s) reside.
Sec. 96.14 Providing adoption services using other providers.
(a) Accreditation, temporary accreditation, and approval under this
part require that, in each Convention adoption case, an accredited
agency, a temporarily accredited agency, or an approved person will be
identified and act as the primary provider. If one accredited agency,
temporarily
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accredited agency, or approved person is providing all adoption
services by itself, it must act as the primary provider. If just one
accredited agency, temporarily accredited agency, or approved person is
involved in providing adoption services, the sole accredited agency,
temporarily accredited agency, or approved person must act as the
primary provider. If adoption services in the Convention case are being
provided by more than one accredited agency, temporarily accredited
agency, or approved person, the agency or person that has child
placement responsibility, as evidenced by the following, must act as
the primary provider throughout the case:
(1) Entering into placement contracts with prospective adoptive
parent(s) to provide child referral and placement;
(2) Accepting custody from a birth parent or other legal custodian
in a Convention country for the purpose of placement for adoption;
(3) Assuming responsibility for liaison with a Convention country's
Central Authority or its designees with regard to arranging an
adoption; or
(4) Receiving from or sending to a Convention country information
about a child that is under consideration for adoption, unless acting
as a local service provider that conveys such information to parent(s)
on behalf of the primary provider.
(b) Pursuant to Sec. 96.44, in the case of accredited agencies or
approved persons, and Sec. 96.104(g), in the case of temporarily
accredited agencies, the primary provider may only use the following to
provide adoption services in the United States:
(1) A supervised provider, including an accredited agency,
temporarily accredited agency, or approved person;
(2) An exempted provider, if the exempted provider's home study or
child background study will be reviewed and approved by an accredited
agency or temporarily accredited agency pursuant to Sec. 96.47(c) or
Sec. 96.53(b); or
(3) A public domestic authority.
(c) Pursuant to Sec. 96.44 of subpart F, in the case of accredited
agencies or approved persons, and Sec. 96.104(g) of subpart N, in the
case of temporarily accredited agencies, the primary provider may only
use the following to provide adoption services in a Convention country:
(1) A Central Authority, competent authority, or a public foreign
authority;
(2) A foreign supervised provider, including a provider accredited
by the Convention country; or
(3) A foreign provider (agency, person, or other non-governmental
entity) who
(i) Has secured or is securing the necessary consent to termination
of parental rights and to adoption, if the primary provider verifies
consent pursuant to Sec. 96.46(c); or
(ii) Has prepared or is preparing a background study on a child in
a case involving immigration to the United States (incoming case) or a
home study on prospective adoptive parent(s) in a case involving
emigration from the United States (outgoing case), and a report on the
results of such a study, if the primary provider verifies the study and
report pursuant to Sec. 96.46(c).
(d) The primary provider is not required to provide supervision or
to assume responsibility for:
(1) Public domestic authorities; or
(2) Central Authorities, competent authorities, and public foreign
authorities.
(e) The primary provider must adhere to the standards contained in
Sec. 96.45 (Using supervised providers in the United States) when
using supervised providers in the United States and the applicable
standards contained in Sec. 96.46 (Using providers in Convention
countries) when using providers outside the United States.
Sec. 96.15 Examples.
The following examples illustrate the rules of Sec. Sec. 96.12 to
96.14:
Example 1. Identifying a child for adoption and arranging an
adoption. Agency X identifies children eligible for adoption in the
United States on a TV program in an effort to recruit prospective
adoptive parent(s). A couple in a Convention country calls Agency X
about one of the children. Agency X refers them to an agency or
person in the United States who arranges intercountry adoptions.
Agency X does not require accreditation, temporarily accreditation,
approval or supervision because it is not both identifying and
arranging the adoption. In contrast, Agency Y, located in the United
States, provides information about children eligible for adoption in
a Convention country on a website and then arranges for interested
U.S. parents to adopt those children. Agency Y must be accredited,
temporarily accredited, approved, or supervised because, in addition
to identifying children eligible for adoption, it is also helping to
arrange the adoption.
Example 2. Child welfare services exemption. Doctor X evaluates
the medical records and a video of Child Y. The evaluation will be
used in a Convention adoption as part of the placement of Child Y
and is the only service that Doctor X provides in the United States
with regard to Child Y's adoption. Doctor X (not employed with an
accredited agency or approved person) does not need to be approved
or supervised because she is not providing an adoption service as
defined in Sec. 96.2.
Example 3. Home study exemption. Social Worker X, in the United
States, (not employed with an accredited agency or approved person)
interviews Prospective Adoptive Parent Y, obtains a criminal
background study, and checks the references of Prospective Adoptive
Parent Y, then composes a report and submits the report to an
accredited agency for use in a Convention adoption. Social Worker X
does not provide any other services to Prospective Adoptive Parent
Y. Social Worker X qualifies as an exempted provider and therefore
need not be approved or operate as supervised provider. In contrast,
Social Worker Z, in the United States, (not employed with an
accredited agency or approved person) prepares a home study report
for Prospective Adoptive Parent(s) W, and in addition re-enters the
house after Child V has been placed with Prospective Adoptive
Parent(s) W to assess how V and W are adjusting to life as a family.
This assessment is post-placement monitoring, which is an adoption
service. Therefore, Social Worker Z would need to become approved
before providing this assessment for this Convention adoption or
else operate as a supervised provider. If an agency or person
provides an adoption service in addition to a home study or child
background study, the agency or person needs to become accredited,
temporarily accredited, approved, or supervised before providing
that adoption service.
Example 4. Child background study exemption. An employee of
Agency X interviews Child Y in the United States and compiles a
report concerning Child Y's social and developmental history for use
in a Convention adoption. Agency X provides no other adoption
services on behalf of Child Y. Agency X does not need to be
accredited, temporarily accredited, approved, or supervised. Agency
X is only conducting and creating a child background study, and
therefore is an exempted provider. In contrast, an employee of
Agency Z interviews Child W in the United States and creates a child
background study for use in a Convention adoption. Agency Z
subsequently identifies prospective adoptive parent(s) and arranges
a new adoption when Child W's previous adoption becomes disrupted.
Agency Z needs to be accredited, temporarily accredited, approved,
or supervised before providing this service. If an agency or person
provides an adoption service in addition to a child background study
or home study, the agency or person needs to be accredited,
temporarily accredited, approved, or supervised before providing the
additional service.
Example 5. Home study and child welfare services exemptions.
Agency X interviews Prospective Adoptive Parent Y, obtains a
criminal background check, checks the references of Prospective
Adoptive Parent Y, then composes a home study and submits it to an
accredited agency for use in a Convention adoption in the United
States. Parent Y later joins a post-adoption support group for
adoptive parents sponsored by Agency X. If Agency X performs no
other adoption services, Agency X does not need to be accredited,
temporarily accredited, approved, or supervised. If an agency or
person provides a home study or child background study as well as
other services in
[[Page 8138]]
the United States that do not require accreditation, temporary
accreditation, approval, or supervision, and no other adoption
services, the agency or person is an exempted provider.
Example 6. Exempted provider. Agency X interviews Prospective
Adoptive Parent(s) Y, obtains a criminal background check, checks
the references of Prospective Adoptive Parent(s) Y, and then
composes a home study and submits the report to an accredited
agency. In addition, Agency X interviews Child Z and compiles a
report concerning Child Z's social and developmental history. All of
Agency X's work is done in the United States. Both reports will be
used in a Convention adoption. If Agency X performs no other
adoption services, Agency X does not need to be accredited,
temporarily accredited, approved, or supervised. If an agency or
person provides a home study and child background study as well as
other services that do not require accreditation, temporary
accreditation, approval or supervision, and no other adoption
services, the agency or person is an exempted provider.
Example 7. Legal services exemption. Attorney X (not employed
with an accredited agency or approved person) provides advice and
counsel to Prospective Adoptive Parent(s) Y on filling out DHS
paperwork required for a Convention adoption. Among other papers,
Attorney X prepares an affidavit of consent to termination of
parental rights and to adoption of Child W to be signed by the birth
mother in the United States. Attorney X must be approved or
supervised because securing consent to termination of parental
rights is an adoption service. In contrast, Attorney Z (not employed
with an accredited agency or approved person) assists Adoptive
Parent(s) T to complete an adoption in the State in which they
reside, after they have been granted an adoption in Child V's
Convention country of origin. Attorney Z is exempt from approval or
supervision because she is providing legal services, but no adoption
services.
Example 8. Post-placement monitoring. A court in a Convention
country has granted custody of Child W to Prospective Adoptive
Parent(s) Y pending the completion of W's adoption. Agency X
interviews both Prospective Adoptive Parent(s) Y and Child W in
their home in the United States. Agency X gathers information on the
adjustment of Child W as a member of the family and inquires into
the social and educational progress of Child W. Agency X must be
accredited, temporarily accredited, approved, or supervised. Agency
X's activities constitute post-placement monitoring, which is an
adoption service. In contrast, if Person Z provided counseling for
Prospective Adoptive Parent(s) Y and/or Child W, but provided no
adoption services in the United States to the family, Person Z would
not need to be approved or supervised. Post-placement counseling is
different than post-placement monitoring because it does not relate
to evaluating the adoption placement. Post-placement counseling is
not an adoption service and does not trigger the accreditation/
approval requirements of the IAA and this part.
Example 9. Post-adoption services. Convention Country H requires
that post-adoption reports be completed and sent to its Central
Authority every year until adopted children reach the age of 18.
Agency X provides support groups and a newsletter for U.S. parents
that have adopted children from Country H and encourages parents to
complete their post-adoption reports annually. Agency X does not
need to be accredited, temporarily accredited, approved, or
supervised because it is providing only post-adoption services.
Post-adoption services are not included in the definition of
adoption services, and therefore, do not trigger accreditation/
approval requirements of the IAA and this part.
Example 10. Assuming custody and providing services after a
disruption. Agency X provides counseling for Prospective Adoptive
Parent(s) Y and for Child W pending the completion of Child W's
Convention adoption. The adoption is eventually disrupted. Agency X
helps recruit and identify new prospective adoptive parent(s) for
Child W, but it is Agency P that assumes custody of Child W and
places him in foster care until an alternative adoptive placement
can be found. Agency X is not required to be accredited, temporarily
accredited, approved, or supervised because it is not providing an
adoption service in the United States as defined in Sec. 96.2.
Agency P, on the other hand, is providing an adoption service and
would have to be accredited, temporarily accredited, approved, or
supervised.
Example 11. Making non-judicial determinations of best interest
of child and appropriateness of adoptive placement of child. Agency
X receives information about and a videotape of Child W from the
institution where Child W lives in a Convention country. Based on
the age, sex, and health problems of Child W, Agency X matches
Prospective Adoptive Parent(s) Y with Child W. Prospective Adoptive
Parent(s) Y receive a referral from Agency X and agree to accept the
referral and proceed with the adoption of Child W. Agency X
determines that Prospective Adoptive Parent(s) Y are a good
placement for Child W and notifies the competent authority in W's
country of origin that it has found a match for Child W and will
start preparing adoption paperwork. All of Agency X's services are
provided in the United States. Agency X is performing an adoption
service and must be accredited, temporarily accredited, approved, or
supervised.
Example 12. Securing necessary consent to termination of
parental rights and to adoption. Facilitator Y is accredited by
Convention Country Z. He has contacts at several orphanages in
Convention Country Z and helps Agency X match children eligible for
adoption with prospective adoptive parent(s) in the United States.
Facilitator Y works with the institution that is the legal guardian
of Child W in order to get the documents showing the institution's
legal consent to the adoption of Child W. Agency X is the only U.S.
agency providing adoption services in the case. Agency X must be
accredited, temporarily accredited, or approved and must either
treat Facilitator Y as a foreign supervised provider in accordance
with Sec. 96.46(a) and (b) or verify the consents Facilitator Y
secured, in accordance with Sec. 96.46(c).
Sec. 96.16 Public domestic authorities.
Public domestic authorities are not required to become accredited
to be able to provide adoption services in Convention adoption cases,
but must comply with the Convention, the IAA, and other applicable law
when providing services in a Convention adoption case.
Sec. 96.17 Effective date of accreditation and approval requirements.
The Secretary will publish a document in the Federal Register
announcing the date on which the Convention will enter into force for
the United States. As of that date, the regulations in subpart C of
this part will govern Convention adoptions between the United States
and Convention countries, and agencies or persons providing adoption
services must comply with Sec. 96.12 and applicable Federal
regulations. The Secretary will maintain for the public a current
listing of Convention countries.
Subpart D--Application Procedures for Accreditation and Approval
Sec. 96.18 Scope.
(a) Agencies are eligible to apply for ``accreditation'' or
``temporary accreditation.'' Persons are eligible to apply for
``approval.'' Temporary accreditation is governed by the provisions in
subpart N of this part. Unless otherwise provided in subpart N, the
provisions of this subpart do not apply to agencies seeking temporary
accreditation. Applications for full accreditation rather than
temporary accreditation will be processed in accordance with Sec.
96.20 and Sec. 96.21.
(b) An agency or person seeking to be accredited or approved as of
the time the Convention enters into force for the United States, and to
be included on the initial list of accredited agencies and approved
persons that the Secretary will deposit with the Permanent Bureau of
the Hague Conference on Private International Law, must follow the
special provision contained in Sec. 96.19.
(c) If an agency or person is reapplying for accreditation or
approval following cancellation of its accreditation or approval by an
accrediting entity or refusal by an accrediting entity to renew its
accreditation or approval, it must comply with the procedures in Sec.
96.78.
(d) If an agency or person that has been accredited or approved is
seeking
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renewal, it must comply with the procedures in Sec. 96.63.
Sec. 96.19 Special provision for agencies and persons seeking to be
accredited or approved as of the time the Convention enters into force
for the United States.
(a) The Secretary will establish and announce, by public notice in
the Federal Register, a transitional application deadline. An agency or
person seeking to be accredited or approved as of the time the
Convention enters into force for the United States must submit an
application to an accrediting entity with jurisdiction to evaluate its
application, with the required fee(s), by the transitional application
deadline. The Secretary will subsequently establish and announce a date
by which such agencies and persons must complete the accreditation or
approval process in time to be accredited or approved at the time the
Convention enters into force for the United States (deadline for
initial accreditation or approval).
(b) The accrediting entity must use its best efforts to provide a
reasonable opportunity for an agency or person that applies by the
transitional application deadline to complete the accreditation or
approval process by the deadline for initial accreditation or approval.
Only those agencies and persons that are accredited or approved by the
deadline for initial accreditation or approval will be included on the
initial list of accredited agencies and approved persons that the
Secretary will deposit with the Permanent Bureau of the Hague
Conference on Private International Law.
(c) The accrediting entity may, in its discretion, permit an agency
or person that fails to submit an application by the transitional
application deadline to attempt to complete the accreditation or
approval process in time to be included on the initial list; however,
such an agency or person is not assured an opportunity to complete the
accreditation or approval process in time to be included on the initial
list. The accrediting entity must give priority to applicants that
filed by the transitional application deadline. If such an agency or
person succeeds in completing the accreditation or approval process in
time to be included on the initial list, it will be treated as an
agency or person that applied by the transitional application deadline
for the purposes of Sec. 96.58 and Sec. 96.60(b).
Sec. 96.20 First-time application procedures for accreditation and
approval.
(a) Agencies or persons seeking accreditation or approval for the
first time may submit an application at any time, with the required
fee(s), to an accrediting entity with jurisdiction to evaluate the
application. If an agency or person seeks to be accredited or approved
by the deadline for initial accreditation or approval, an agency or
person must comply with the procedures in Sec. 96.19.
(b) The accrediting entity must establish and follow uniform
application procedures and must make information about those procedures
available to agencies and persons that are considering whether to apply
for accreditation or approval. An accrediting entity must evaluate the
applicant for accreditation or approval in a timely fashion.
Sec. 96.21 Choosing an accrediting entity.
(a) An agency that seeks to become accredited must apply to an
accrediting entity that is designated to provide accreditation services
and that has jurisdiction over its application. A person that seeks to
become approved must apply to an accrediting entity that is designated
to provide approval services and that has jurisdiction over its
application. The agency or person may apply to only one accrediting
entity at a time.
(b)(1) If the agency or person is applying for accreditation or
approval pursuant to this part for the first time, it may apply to any
accrediting entity with jurisdiction over its application. However, the
agency or person must apply to the same accrediting entity that handled
its prior application when it next applies for accreditation or
approval, if the agency or person:
(i) Has been denied accreditation or approval;
(ii) Has withdrawn its application in anticipation of denial;
(iii) Has had its accreditation or approval cancelled by an
accrediting entity or the Secretary;
(iv) Has been temporarily debarred by the Secretary; or
(v) Has been refused renewal of its accreditation or approval by an
accrediting entity.
(2) If the prior accrediting entity is no longer providing
accreditation or approval services, the agency or person may apply to
any accrediting entity with jurisdiction over its application.
Sec. 96.22 [Reserved]
Subpart E--Evaluation of Applicants for Accreditation and Approval
Sec. 96.23 Scope.
The provisions in this subpart govern the evaluation of agencies
and persons for accreditation or approval. Temporary accreditation is
governed by the provisions in subpart N of this part. Unless otherwise
provided in subpart N, the provisions of this subpart do not apply to
agencies seeking temporary accreditation.
Sec. 96.24 Procedures for evaluating applicants for accreditation or
approval.
(a) The accrediting entity must designate at least two evaluators
to evaluate an agency or person for accreditation or approval. The
accrediting entity's evaluators must have expertise in intercountry
adoption, standards evaluation, or experience with the management or
oversight of child welfare organizations and must also meet any
additional qualifications required by the Secretary in the agreement
with the accrediting entity.
(b) To evaluate the agency's or person's eligibility for
accreditation or approval, the accrediting entity must:
(1) Review the agency's or person's written application and
supporting documentation;
(2) Verify the information provided by the agency or person by
examining underlying documentation;
(3) Consider any complaints received by the accrediting entity
pursuant to subpart J of this part; and
(4) Conduct site visit(s).
(c) The site visit(s) may include, but need not be limited to,
interviews with birth parents, adoptive parent(s), prospective adoptive
parent(s), and adult adoptee(s) served by the agency or person,
interviews with the agency's or person's employees, and interviews with
other individuals knowledgeable about the agency's or person's
provision of adoption services. It may also include a review of on-site
documents. The accrediting entity must, to the extent practicable,
advise the agency or person in advance of the type of documents it
wishes to review during the site visit. The accrediting entity must
require at least one of the evaluators to participate in each site
visit. The accrediting entity must determine the number of evaluators
that participate in a site visit in light of factors such as:
(1) The agency's or person's size;
(2) The number of adoption cases it handles;
(3) The number of sites the accrediting entity decides to visit;
and
(4) The number of individuals working at each site.
(d) Before deciding whether to accredit an agency or approve a
person, the accrediting entity may, in its discretion, advise the
agency or person of any deficiencies that may hinder or prevent its
accreditation or approval and defer a decision to allow the agency or
person to correct the deficiencies.
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Sec. 96.25 Access to information and documents requested by the
accrediting entity.
(a) The agency or person must give the accrediting entity access to
information and documents, including adoption case files and
proprietary information, that it requires or requests to evaluate an
agency or person for accreditation or approval and to perform its
oversight, enforcement, renewal, data collection, and other functions.
The agency or person must also cooperate with the accrediting entity by
making employees available for interviews upon request.
(b) Accrediting entity review of adoption case files pursuant to
paragraph (a) shall be limited to Convention adoption case files,
except that, in the case of first-time applicants for accreditation or
approval, the accrediting entity may review adoption case files related
to non-Convention cases for purposes of assessing the agency's or
person's capacity to comply with record-keeping and data-management
standards in subpart F of this part. The accrediting entity shall
permit the agency or person to redact names and other information that
identifies birth parent(s), prospective adoptive parent(s), and
adoptee(s) from such non-Convention adoption case files prior to their
inspection by the accrediting entity.
(c) If an agency or person fails to provide requested documents or
information, or to make employees available as requested, the
accrediting entity may deny accreditation or approval or, in the case
of an accredited agency, temporarily accredited agency, or approved
person, take appropriate adverse action against the agency or person
solely on that basis.
Sec. 96.26 Protection of information and documents by the accrediting
entity.
(a) The accrediting entity must protect from unauthorized use and
disclosure all documents and information about the agency or person it
receives including, but not limited to, documents and proprietary
information about the agency's or person's finances, management, and
professional practices received in connection with the performance of
its accreditation or approval, oversight, enforcement, renewal, data
collection, or other functions under its agreement with the Secretary
and this part.
(b) The documents and information received may not be disclosed to
the public and may be used only for the purpose of performing the
accrediting entity's accreditation or approval functions and related
tasks under its agreement with Secretary and this part, or to provide
information to the Secretary, the Complaint Registry, or an appropriate
Federal, State, or local authority, including, but not limited to, a
public domestic authority or local law enforcement authority unless:
(1) Otherwise authorized by the agency or person in writing;
(2) Otherwise required under Federal or State laws; or
(3) Required pursuant to subpart M of this part.
(c) Unless the names and other information that identifies the
birth parent(s), prospective adoptive parent(s), and adoptee(s) are
requested by the accrediting entity for an articulated reason, the
agency or person may withhold from the accrediting entity such
information and substitute individually assigned codes in the documents
it provides. The accrediting entity must have appropriate safeguards to
protect from unauthorized use and disclosure of any information in its
files that identifies birth parent(s), prospective adoptive parent(s),
and adoptee(s). The accrediting entity must ensure that its officers,
employees, contractors, and evaluators who have access to information
or documents provided by the agency or person have signed a non-
disclosure agreement reflecting the requirements of Sec. 96.26(a) and
(b). The accrediting entity must maintain an accurate record of the
agency's or person's application, the supporting documentation, and the
basis for its decision.
Sec. 96.27 Substantive criteria for evaluating applicants for
accreditation or approval.
(a) The accrediting entity may not grant an agency accreditation or
a person approval, or permit an agency's or person's accreditation or
approval to be maintained, unless the agency or person demonstrates to
the satisfaction of the accrediting entity that it is in substantial
compliance with the standards in subpart F of this part.
(b) When the agency or person makes its initial application for
accreditation or approval under the standards contained in subpart F of
this part, the accrediting entity may measure the capacity of the
agency or person to achieve substantial compliance with these standards
where relevant evidence of its actual performance is not yet available.
Once the agency or person has been accredited or approved pursuant to
this part, the accrediting entity must, for the purposes of monitoring,
renewal, enforcement, and reapplication after adverse action, consider
the agency's or person's actual performance in deciding whether the
agency or person is in substantial compliance with the standards
contained in subpart F of this part, unless the accrediting entity
determines that it is still necessary to measure capacity because
adequate evidence of actual performance is not available.
(c) The standards contained in subpart F of this part apply during
all the stages of accreditation and approval, including, but not
limited to, when the accrediting entity is evaluating an applicant for
accreditation or approval, when it is determining whether to renew an
agency's or person's accreditation or approval, when it is monitoring
the performance of an accredited agency or approved person, and when it
is taking adverse action against an accredited agency or approved
person. Except as provided in Sec. 96.25 and paragraphs (e) and (f) of
this section, the accrediting entity may only use the standards
contained in subpart F of this part when determining whether an agency
or person may be granted or permitted to maintain Convention
accreditation or approval.
(d) The Secretary will ensure that each accrediting entity performs
its accreditation and approval functions using only a method approved
by the Secretary that is substantially the same as the method approved
for use by each other accrediting entity. Each such method will
include: an assigned value for each standard (or element of a
standard); a method of rating an agency's or person's compliance with
each applicable standard; and a method of evaluating whether an
agency's or person's overall compliance with all applicable standards
establishes that the agency or person is in substantial compliance with
the standards and can be accredited, temporarily accredited, or
approved. The Secretary will ensure that the value assigned to each
standard reflects the relative importance of that standard to
compliance with the Convention and the IAA and is consistent with the
value assigned to the standard by other accrediting entities. The
accrediting entity must advise applicants of the value assigned to each
standard (or elements of each standard) at the time it provides
applicants with the application materials.
(e) If an agency or person has previously been denied accreditation
or approval, has withdrawn its application in anticipation of denial,
has had its temporary accreditation withdrawn, or is reapplying for
accreditation or approval after cancellation, refusal to renew, or
temporary debarment, the accrediting entity may take the reasons
underlying such actions into account when evaluating the agency or
person
[[Page 8141]]
for accreditation or approval, and may deny accreditation or approval
on the basis of the previous action.
(f) If an agency or person that has an ownership or control
interest in the applicant, as that term is defined in section 1124 of
the Social Security Act (42 U.S.C. 1320a-3), has been debarred pursuant
to Sec. 96.85, the accrediting entity may take into account the
reasons underlying the debarment when evaluating the agency or person
for accreditation or approval, and may deny accreditation or approval
or refuse to renew accreditation or approval on the basis of the
debarment.
(g) The standards contained in subpart F of this part do not
eliminate the need for an agency or person to comply fully with the
laws of the jurisdictions in which it operates. An agency or person
must provide adoption services in Convention cases consistent with the
laws of any State in which it operates and with the Convention and the
IAA. Persons that are approved to provide adoption services may only
provide such services in States that do not prohibit persons from
providing adoption services. Nothing in the application of subparts E
and F should be construed to require a State to allow persons to
provide adoption services if State law does not permit them to do so.
Sec. 96.28 [Reserved]
Subpart F--Standards for Convention Accreditation and Approval
Sec. 96.29 Scope.
The provisions in this subpart provide the standards for
accrediting agencies and approving persons. Temporary accreditation is
governed by the provisions in subpart N of this part. Unless otherwise
provided in subpart N of this part, the provisions in this subpart do
not apply to agencies seeking temporary accreditation.
Licensing and Corporate Governance
Sec. 96.30 State licensing.
(a) The agency or person is properly licensed or otherwise
authorized by State law to provide adoption services in at least one
State.
(b) The agency or person follows applicable State licensing and
regulatory requirements in all jurisdictions in which it provides
adoption services.
(c) If it provides adoption services in a State in which it is not
itself licensed or authorized to provide such services, the agency or
person does so only:
(1) Through agencies or persons that are licensed or authorized by
State law to provide adoption services in that State and that are
exempted providers or acting as supervised providers; or
(2) Through public domestic authorities.
(d) In the case of a person, the individual or for-profit entity is
not prohibited by State law from providing adoption services in any
State where it is providing adoption services, and does not provide
adoption services in Convention countries that prohibit individuals or
for-profit entities from providing adoption services.
Sec. 96.31 Corporate structure.
(a) The agency qualifies for nonprofit tax treatment under section
501(c)(3) of the Internal Revenue Code of 1986, as amended, or for
nonprofit status under the laws of any State.
(b) The person is an individual or is a for-profit entity organized
as a corporation, company, association, firm, partnership, society, or
joint stock company, or other legal entity under the laws of any State.
Sec. 96.32 Internal structure and oversight.
(a) The agency or person has (or, in the case of an individual, is)
a chief executive officer or equivalent official who is qualified by
education, adoption service experience, and management credentials to
ensure effective use of resources and coordinated delivery of the
services provided by the agency or person, and has authority and
responsibility for management and oversight of the staff and any
supervised providers in carrying out the adoption-related functions of
the organization.
(b) The agency or person has a board of directors or a similar
governing body that establishes and approves its mission, policies,
budget, and programs; provides leadership to secure the resources
needed to support its programs; includes one or more individuals with
experience in adoption, including but not limited to, adoptees, birth
parents, prospective adoptive parent(s), and adoptive parents; and
appoints and oversees the performance of its chief executive officer or
equivalent official. This standard does not apply where the person is
an individual practitioner.
(c) The agency or person keeps permanent records of the meetings
and deliberations of its governing body and of its major decisions
affecting the delivery of adoption services.
(d) The agency or person has in place procedures and standards,
pursuant to Sec. 96.45 and Sec. 96.46, for the selection, monitoring,
and oversight of supervised providers.
(e) The agency or person discloses to the accrediting entity the
following information:
(1) Any other names by which the agency or person is or has been
known, under either its current or any former form of organization, and
the addresses and phone numbers used when such names were used;
(2) The name, address, and phone number of each current director,
manager, and employee of the agency or person, and, for any such
individual who previously served as a director, manager, or employee of
another provider of adoption services, the name, address, and phone
number of such other provider; and
(3) The name, address, and phone number of any entity it uses or
intends to use as a supervised provider.
Financial and Risk Management
Sec. 96.33 Budget, audit, insurance, and risk assessment
requirements.
(a) The agency or person operates under a budget approved by its
governing body, if applicable, for management of its funds. The budget
discloses all remuneration (including perquisites) paid to the agency's
or person's board of directors, managers, employees, and supervised
providers.
(b) The agency's or person's finances are subject to annual
internal review and oversight and are subject to independent audits
every four years. The agency or person submits copies of internal
financial review reports for inspection by the accrediting entity each
year.
(c) The agency or person submits copies of each audit, as well as
any accompanying management letter or qualified opinion letter, for
inspection by the accrediting entity.
(d) The agency or person meets the financial reporting requirements
of Federal and State laws and regulations.
(e) The agency's or person's balance sheets show that it operates
on a sound financial basis and maintains on average sufficient cash
reserves, assets, or other financial resources to meet its operating
expenses for two months, taking into account its projected volume of
cases and its size, scope, and financial commitments. The agency or
person has a plan to transfer its Convention cases if it ceases to
provide or is no longer permitted to provide adoption services in
Convention cases. The plan includes provisions for an organized closure
and reimbursement to clients of funds paid for services not yet
rendered.
(f) If it accepts charitable donations, the agency or person has
safeguards in place to ensure that such donations do
[[Page 8142]]
not influence child placement decisions in any way.
(g) The agency or person assesses the risks it assumes, including
by reviewing information on the availability of insurance coverage for
Convention-related activities. The agency or person uses the assessment
to meet the requirements in paragraph (h) of this section and as the
basis for determining the type and amount of professional, general,
directors' and officers', errors and omissions, and other liability
insurance to carry.
(h) The agency or person maintains professional liability insurance
in amounts reasonably related to its exposure to risk, but in no case
in an amount less than $1,000,000 in the aggregate.
(i) The agency's or person's chief executive officer, chief
financial officer, and other officers or employees with direct
responsibility for financial transactions or financial management of
the agency or person are bonded.
Sec. 96.34 Compensation.
(a) The agency or person does not compensate any individual who
provides intercountry adoption services with an incentive fee or
contingent fee for each child located or placed for adoption.
(b) The agency or person compensates its directors, officers,
employees, and supervised providers who provide intercountry adoption
services only for services actually rendered and only on a fee-for-
service, hourly wage, or salary basis rather than a contingent fee
basis.
(c) The agency or person does not make any payments, promise
payment, or give other consideration to any individual directly or
indirectly involved in provision of adoption services in a particular
case, except for salaries or fees for services actually rendered and
reimbursement for costs incurred. This does not prohibit an agency or
person from providing in-kind or other donations not intended to
influence or affect a particular adoption.
(d) The fees, wages, or salaries paid to the directors, officers,
employees, and supervised providers of the agency or person are not
unreasonably high in relation to the services actually rendered, taking
into account the country in which the adoption services are provided
and norms for compensation within the intercountry adoption community
in that country, to the extent that such norms are known to the
accrediting entity; the location, number, and qualifications of staff;
workload requirements; budget; and size of the agency or person.
(e) Any other compensation paid to the agency's or person's
directors or members of its governing body is not unreasonably high in
relation to the services rendered, taking into account the same factors
listed in paragraph (d) of this section and its for-profit or nonprofit
status.
(f) The agency or person identifies all vendors to whom clients are
referred for non-adoption services and discloses to the accrediting
entity any corporate or financial arrangements and any family
relationships with such vendors.
Ethical Practices and Responsibilities
Sec. 96.35 Suitability of agencies and persons to provide adoption
services consistent with the Convention.
(a) The agency or person provides adoption services ethically and
in accordance with the Convention's principles of:
(1) Ensuring that intercountry adoptions take place in the best
interests of children; and
(2) Preventing the abduction, exploitation, sale, or trafficking of
children.
(b) In order to permit the accrediting entity to evaluate the
suitability of an agency or person for accreditation or approval, the
agency or person discloses to the accrediting entity the following
information related to the agency or person, under its current or any
former name:
(1) Any instances in which the agency or person has lost the right
to provide adoption services in any State or country, including the
basis for such action(s);
(2) Any instances in which the agency or person was debarred or
otherwise denied the authority to provide adoption services in any
State or country, including the basis and disposition of such
action(s);
(3) Any licensing suspensions for cause or other negative sanctions
by oversight bodies against the agency or person, including the basis
and disposition of such action(s);
(4) For the prior ten-year period, any disciplinary action(s)
against the agency or person by a licensing or accrediting body,
including the basis and disposition of such action(s);
(5) For the prior ten-year period, any written complaint(s) related
to the provision of adoption-related services, including the basis and
disposition of such complaints, against the agency or person filed with
any State or Federal or foreign regulatory body and of which the agency
or person was notified;
(6) For the prior ten-year period, any known past or pending
investigation(s) (by Federal authorities or by public domestic
authorities), criminal charge(s), child abuse charge(s), or lawsuit(s)
against the agency or person, related to the provision of child welfare
or adoption-related services, and the basis and disposition of such
action(s).
(7) Any instances where the agency or person has been found guilty
of any crime under Federal, State, or foreign law or has been found to
have committed any civil or administrative violation involving
financial irregularities under Federal, State, or foreign law;
(8) For the prior five-year period, any instances where the agency
or person has filed for bankruptcy; and
(9) Descriptions of any businesses or activities that are
inconsistent with the principles of the Convention and that have been
or are currently carried out by the agency or person, affiliate
organizations, or by any organization in which the agency or person has
an ownership or controlling interest.
(c) In order to permit the accrediting entity to evaluate the
suitability of an agency or person for accreditation or approval, the
agency or person (for its current or any former names) discloses to the
accrediting entity the following information about its individual
directors, officers, and employees:
(1) For the prior ten-year period, any conduct by any such
individual related to the provision of adoption-related services that
was subject to external disciplinary proceeding(s);
(2) Any convictions or current investigations of any such
individual who is in a senior management position for acts involving
financial irregularities;
(3) The results of a State criminal background check and a child
abuse clearance for any such individual in the United States in a
senior management position or who works directly with parent(s) and/or
children (unless such checks have been included in the State licensing
process); and
(4) A completed FBI Form FD-258 for each such individual in the
United States in a senior management position or who works directly
with parent(s) and/or children, which the agency or person must keep on
file in case future allegations warrant submission of the form for a
Federal criminal background check of any such individual.
(5) Descriptions of any businesses or activities that are
inconsistent with the principles of the Convention and that are known
to have been or are currently carried out by current individual
directors, officers, or employees of the agency or person.
(d) In order to permit the accrediting entity to evaluate the
suitability of a
[[Page 8143]]
person who is an individual practitioner for approval, the individual:
(1) Provides the results of a State criminal background check and a
child abuse clearance to the accrediting entity;
(2) Completes and retains a FBI Form FD-258 on file in case future
allegations warrant submission of the form for a Federal criminal
background check;
(3) If a lawyer, for every jurisdiction in which he or she has ever
been admitted to the Bar, provides a certificate of good standing or an
explanation of why he or she is not in good standing, accompanied by
any relevant documentation and immediately reports to the accrediting
entity any disciplinary action considered by a State bar association,
regardless of whether the action relates to intercountry adoption; and
(4) If a social worker, for every jurisdiction in which he or she
has been licensed, provides a certificate of good standing or an
explanation of why he or she is not in good standing, accompanied by
any relevant documentation.
(e) In order to permit the accrediting entity to monitor the
suitability of an agency or person, the agency or person must disclose
any changes in the information required by Sec. 96.35 within thirty
business days of learning of the change.
Sec. 96.36 Prohibition on child buying.
(a) The agency or person prohibits its employees and agents from
giving money or other consideration, directly or indirectly, to a
child's parent(s), other individual(s), or an entity as payment for the
child or as an inducement to release the child. If permitted or
required by the child's country of origin, an agency or person may
remit reasonable payments for activities related to the adoption
proceedings, pre-birth and birth medical costs, the care of the child,
the care of the birth mother while pregnant and immediately following
birth of the child, or the provision of child welfare and child
protection services generally. Permitted or required contributions
shall not be remitted as payment for the child or as an inducement to
release the child.
(b) The agency or person has written policies and procedures in
place reflecting the prohibitions in paragraph (a) of this section and
reinforces them in its employee training programs.
Professional Qualifications and Training for Employees
Sec. 96.37 Education and experience requirements for social service
personnel.
(a) The agency or person only uses employees with appropriate
qualifications and credentials to perform, in connection with a
Convention adoption, adoption-related social service functions that
require the application of clinical skills and judgment (home studies,
child background studies, counseling, parent preparation, post-
placement, and other similar services).
(b) The agency's or person's employees meet any State licensing or
regulatory requirements for the services they are providing.
(c) The agency's or person's executive director, the supervisor
overseeing a case, or the social service employee providing adoption-
related social services that require the application of clinical skills
and judgment (home studies, child background studies, counseling,
parent preparation, post-placement, and other similar services) has
experience in the professional delivery of intercountry adoption
services.
(d) Supervisors. The agency's or person's social work supervisors
have prior experience in family and children's services, adoption, or
intercountry adoption and either:
(1) A master's degree from an accredited program of social work;
(2) A master's degree (or doctorate) in a related human service
field, including, but not limited to, psychology, psychiatry,
psychiatric nursing, counseling, rehabilitation counseling, or pastoral
counseling; or
(3) In the case of a social work supervisor who is or was an
incumbent at the time the Convention enters into force for the United
States, the supervisor has significant skills and experience in
intercountry adoption and has regular access for consultation purposes
to an individual with the qualifications listed in paragraph (d)(1) or
paragraph (d)(2) of this section.
(e) Non-supervisory employees. The agency's or person's non-
supervisory employees providing adoption-related social services that
require the application of clinical skills and judgment other than home
studies or child background studies have either:
(1) A master's degree from an accredited program of social work or
in another human service field; or
(2) A bachelor's degree from an accredited program of social work;
or a combination of a bachelor's degree in any field and prior
experience in family and children's services, adoption, or intercountry
adoption; and
(3) Are supervised by an employee of the agency or person who meets
the requirements for supervisors in paragraph (d) of this section.
(f) Home studies. The agency's or person's employees who conduct
home studies:
(1) Are authorized or licensed to complete a home study under the
laws of the States in which they practice;
(2) Meet the INA requirements for home study preparers in 8 CFR
204.3(b); and
(3) Are supervised by an employee of the agency or person who meets
the requirements in paragraph (d) of this section.
(g) Child background studies. The agency's or person's employees
who prepare child background studies:
(1) Are authorized or licensed to complete a child background study
under the laws of the States in which they practice; and
(2) Are supervised by an employee of the agency or person who meets
the requirements in paragraph (d) of this section.
Sec. 96.38 Training requirements for social service personnel.
(a) The agency or person provides newly hired employees who have
adoption-related responsibilities involving the application of clinical
skills and judgment (home studies, child background studies, counseling
services, parent preparation, post-placement and other similar
services) with a comprehensive orientation to intercountry adoption
that includes training on:
(1) The requirements of the Convention, the IAA, the regulations
implementing the IAA, and other applicable Federal regulations;
(2) The INA regulations applicable to the immigration of children
adopted from a Convention country;
(3) The adoption laws of any Convention country where the agency or
person provides adoption services;
(4) Relevant State laws;
(5) Ethical considerations in intercountry adoption and
prohibitions on child-buying;
(6) The agency's or person's goals, ethical and professional
guidelines, organizational lines of accountability, policies, and
procedures; and
(7) The cultural diversity of the population(s) served by the
agency or person.
(b) In addition to the orientation training required under
paragraph (a) of this section, the agency or person provides initial
training to newly hired
[[Page 8144]]
or current employees whose responsibilities include providing adoption-
related social services that involve the application of clinical skills
and judgment (home studies, child background studies, counseling
services, parent preparation, post-placement and other similar
services) that addresses:
(1) The factors in the countries of origin that lead to children
needing adoptive families;
(2) Feelings of separation, grief, and loss experienced by the
child with respect to the family of origin;
(3) Attachment and post-traumatic stress disorders;
(4) Psychological issues facing children who have experienced abuse
or neglect and/or whose parents' rights have been terminated because of
abuse or neglect;
(5) The impact of institutionalization on child development;
(6) Outcomes for children placed for adoption internationally and
the benefits of permanent family placements over other forms of
government care;
(7) The most frequent medical and psychological problems
experienced by children from the countries of origin served by the
agency or person;
(8) The process of developing emotional ties to an adoptive family;
(9) Acculturation and assimilation issues, including those arising
from factors such as race, ethnicity, religion, and culture and the
impact of having been adopted internationally; and
(10) Child, adolescent, and adult development as affected by
adoption.
(c) The agency or person ensures that employees who provide
adoption-related social services that involve the application of
clinical skills and judgment (home studies, child background studies,
counseling services, parent preparation, post-placement and other
similar services) also receive, in addition to the orientation and
initial training described in paragraphs (a) and (b) of this section,
no less than thirty hours of training every two years, or more if
required by State law, on current and emerging adoption practice issues
through participation in seminars, conferences, documented distance
learning courses, and other similar programs. Continuing education
hours required under State law may count toward the thirty hours of
training as long as the training is related to current and emerging
adoption practice issues.
(d) The agency or person exempts newly hired and current employees
from elements of the orientation and initial training required in
paragraphs (a) and (b) of this section only where the employee has
demonstrated experience with intercountry adoption and knowledge of the
Convention and the IAA.
Information Disclosure, Fee Practices, and Quality Control Policies and
Practices
Sec. 96.39 Information disclosure and quality control practices.
(a) The agency or person fully discloses in writing to the general
public upon request and to prospective client(s) upon initial contact:
(1) Its adoption service policies and practices, including general
eligibility criteria and fees;
(2) The supervised providers with whom the prospective client(s)
can expect to work in the United States and in the child's country of
origin and the usual costs associated with their services; and
(3) A sample written adoption services contract substantially like
the one that the prospective client(s) will be expected to sign should
they proceed.
(b) The agency or person discloses to client(s) and prospective
client(s) that the following information is available upon request and
makes such information available when requested:
(1) The number of its adoption placements per year for the prior
three calendar years, and the number and percentage of those placements
that remain intact, are disrupted, or have been dissolved as of the
time the information is provided;
(2) The number of parents who apply to adopt on a yearly basis,
based on data for the prior three calendar years; and
(3) The number of children eligible for adoption and awaiting an
adoptive placement referral via the agency or person.
(c) The agency or person does not give preferential treatment to
its board members, contributors, volunteers, employees, agents,
consultants, or independent contractors with respect to the placement
of children for adoption and has a written policy to this effect.
(d) The agency or person requires a client to sign a waiver of
liability as part of the adoption service contract only where that
waiver complies with applicable State law. Any waiver required is
limited and specific, based on risks that have been discussed and
explained to the client in the adoption services contract.
(e) The agency or person cooperates with reviews, inspections, and
audits by the accrediting entity or the Secretary.
(f) The agency or person uses the internet in the placement of
individual children eligible for adoption only where:
(1) Such use is not prohibited by applicable State or Federal law
or by the laws of the child's country of origin;
(2) Such use is subject to controls to avoid misuse and links to
any sites that reflect practices that involve the sale, abduction,
exploitation, or trafficking of children;
(3) Such use, if it includes photographs, is designed to identify
children either who are currently waiting for adoption or who have
already been adopted or placed for adoption (and who are clearly so
identified); and
(4) Such use does not serve as a substitute for the direct
provision of adoption services, including services to the child, the
prospective adoptive parent(s), and/or the birth parent(s).
Sec. 96.40 Fee policies and procedures.
(a) The agency or person provides to all applicants, prior to
application, a written schedule of expected total fees and estimated
expenses and an explanation of the conditions under which fees or
expenses may be charged, waived, reduced, or refunded and of when and
how the fees and expenses must be paid.
(b) Before providing any adoption service to prospective adoptive
parent(s), the agency or person itemizes and discloses in writing the
following information for each separate category of fees and estimated
expenses that the prospective adoptive parent(s) will be charged in
connection with a Convention adoption:
(1) Home study. The expected total fees and estimated expenses for
home study preparation and approval, whether the home study is to be
prepared directly by the agency or person itself, or prepared by a
supervised provider, exempted provider, or approved person and approved
as required under Sec. 96.47;
(2) Adoption expenses in the United States. The expected total fees
and estimated expenses for all adoption services other than the home
study that will be provided in the United States. This category
includes, but is not limited to, personnel costs, administrative
overhead, operational costs, training and education, communications and
publications costs, and any other costs related to providing adoption
services in the United States;
(3) Foreign country program expenses. The expected total fees and
estimated expenses for all adoption services that will be provided in
the child's Convention country. This category includes, but is not
limited to, costs for
[[Page 8145]]
personnel, administrative overhead, training, education, legal
services, and communications, and any other costs related to providing
adoption services in the child's Convention country;
(4) Care of the child. The expected total fees and estimated
expenses charged to prospective adoptive parent(s) for the care of the
child in the country of origin prior to adoption, including, but not
limited to, costs for food, clothing, shelter and medical care; foster
care services; orphanage care; and any other services provided directly
to the child;
(5) Translation and document expenses. The expected total fees and
estimated expenses for obtaining any necessary documents and for any
translation of documents related to the adoption, along with
information on whether the prospective adoptive parent(s) will be
expected to pay such costs directly or to third parties, either in the
United States or in the child's Convention country, or through the
agency or person. This category includes, but is not limited to, costs
for obtaining, translating, or copying records or documents required to
complete the adoption, costs for the child's Convention court
documents, passport, adoption certificate and other documents related
to the adoption, and costs for notarizations and certifications;
(6) Contributions. Any fixed contribution amount or percentage that
the prospective adoptive parent(s) will be expected or required to make
to child protection or child welfare service programs in the child's
Convention country or in the United States, along with an explanation
of the intended use of the contribution and the manner in which the
transaction will be recorded and accounted for; and
(7) Post-placement and post-adoption reports. The expected total
fees and estimated expenses for any post-placement or post-adoption
reports that the agency or person or parent(s) must prepare in light of
any requirements of the expected country of origin.
(c) If the following fees and estimated expenses were not disclosed
as part of the categories identified in paragraph (b) of this section,
the agency or person itemizes and discloses in writing any:
(1) Third party fees. The expected total fees and estimated
expenses for services that the prospective adoptive parent(s) will be
responsible to pay directly to a third party. Such third party fees
include, but are not limited to, fees to competent authorities for
services rendered or Central Authority processing fees; and
(2) Travel and accommodation expenses. The expected total fees and
estimated expenses for any travel, transportation, and accommodation
services arranged by the agency or person for the prospective adoptive
parent(s).
(d) The agency or person also specifies in its adoption services
contract when and how funds advanced to cover fees or expenses will be
refunded if adoption services are not provided.
(e) When the agency or person uses part of its fees to provide
special services, such as cultural programs for adoptee(s),
scholarships or other services, it discloses this policy to the
prospective adoptive parent(s) in advance of providing any adoption
services and gives the prospective adoptive parent(s) a general
description of the programs supported by such funds.
(f) The agency or person has mechanisms in place for transferring
funds to Convention countries when the financial institutions of the
Convention country so permit and for obtaining written receipts for
such transfers, so that direct cash transactions by the prospective
adoptive parent(s) to pay for adoption services provided in the
Convention country are minimized or unnecessary.
(g) The agency or person does not customarily charge additional
fees and expenses beyond those disclosed in the adoption services
contract and has a written policy to this effect. In the event that
unforeseen additional fees and expenses are incurred in the Convention
country, the agency or person charges such additional fees and expenses
only under the following conditions:
(1) It discloses the fees and expenses in writing to the
prospective adoptive parent(s);
(2) It obtains the specific consent of the prospective adoptive
parent(s) prior to expending any funds in excess of $1000 for which the
agency or person will hold the prospective adoptive parent(s)
responsible or gives the prospective adoptive parent(s) the opportunity
to waive the notice and consent requirement in advance. If the
prospective adoptive parent(s) has the opportunity to waive the notice
and consent requirement in advance, this policy is reflected in the
written policies and procedures of the agency or person; and
(3) It provides written receipts to the prospective adoptive
parent(s) for fees and expenses paid directly by the agency or person
in the Convention country and retains copies of such receipts.
(h) The agency or person returns any funds to which the prospective
adoptive parent(s) may be entitled within sixty days of the completion
of the delivery of services.
Responding to Complaints and Records and Reports Management
Sec. 96.41 Procedures for responding to complaints and improving
service delivery.
(a) The agency or person has written complaint policies and
procedures that incorporate the standards in paragraphs (b) through (h)
of this section and provides a copy of such policies and procedures,
including contact information for the Complaint Registry, to client(s)
at the time the adoption services contract is signed.
(b) The agency or person permits any birth parent, prospective
adoptive parent or adoptive parent, or adoptee to lodge directly with
the agency or person signed and dated complaints about any of the
services or activities of the agency or person (including its use of
supervised providers) that he or she believes raise an issue of
compliance with the Convention, the IAA, or the regulations
implementing the IAA, and advises such individuals of the additional
procedures available to them if they are dissatisfied with the agency's
or person's response to their complaint.
(c) The agency or person responds in writing to complaints received
pursuant to paragraph (b) of this section within thirty days of
receipt, and provides expedited review of such complaints that are
time-sensitive or that involve allegations of fraud.
(d) The agency or person maintains a written record of each
complaint received pursuant to paragraph (b) of this section and the
steps taken to investigate and respond to it and makes this record
available to the accrediting entity or the Secretary upon request.
(e) The agency or person does not take any action to discourage a
client or prospective client from, or retaliate against a client or
prospective client for: making a complaint; expressing a grievance;
providing information in writing or interviews to an accrediting entity
on the agency's or person's performance; or questioning the conduct of
or expressing an opinion about the performance of an agency or person.
(f) The agency or person provides to the accrediting entity and the
Secretary, on a semi-annual basis, a summary of all complaints received
pursuant to paragraph (b) of this section during the preceding six
months (including the number of complaints received and how each
complaint was resolved) and an assessment of any discernible patterns
in complaints received against the agency or person pursuant to
paragraph
[[Page 8146]]
(b) of this section, along with information about what systemic
changes, if any, were made or are planned by the agency or person in
response to such patterns.
(g) The agency or person provides any information about complaints
received pursuant to paragraph (b) of this section as may be requested
by the accrediting entity or the Secretary.
(h) The agency or person has a quality improvement program
appropriate to its size and circumstances through which it makes
systematic efforts to improve its adoption services as needed. The
agency or person uses quality improvement methods such as reviewing
complaint data, using client satisfaction surveys, or comparing the
agency's or person's practices and performance against the data
contained in the Secretary's annual reports to Congress on intercountry
adoptions.
Sec. 96.42 Retention, preservation, and disclosure of adoption
records.
(a) The agency or person retains or archives adoption records in a
safe, secure, and retrievable manner for the period of time required by
applicable State law.
(b) The agency or person makes readily available to the adoptee and
the adoptive parent(s) upon request all non-identifying information in
its custody about the adoptee's health history or background.
(c) The agency or person ensures that personal data gathered or
transmitted in connection with an adoption is used only for the
purposes for which the information was gathered and safeguards
sensitive individual information.
(d) The agency or person has a plan that is consistent with the
provisions of this section, the plan required under Sec. 96.33, and
applicable State law for transferring custody of adoption records that
are subject to retention or archival requirements to an appropriate
custodian, and ensuring the accessibility of those adoption records, in
the event that the agency or person ceases to provide or is no longer
permitted to provide adoption services under the Convention.
(e) The agency or person notifies the accrediting entity and the
Secretary in writing within thirty days of the time it ceases to
provide or is no longer permitted to provide adoption services and
provides information about the transfer of its adoption records.
Sec. 96.43 Case tracking, data management, and reporting.
(a) When acting as the primary provider, the agency or person
maintains all the data required in this section in a format approved by
the accrediting entity and provides it to the accrediting entity on an
annual basis.
(b) When acting as the primary provider, the agency or person
routinely generates and maintains reports as follows:
(1) For cases involving children immigrating to the United States,
information and reports on the total number of intercountry adoptions
undertaken by the agency or person each year in both Convention and
non-Convention cases and, for each case:
(i) The Convention country or other country from which the child
emigrated;
(ii) The State to which the child immigrated;
(iii) The State, Convention country, or other country in which the
adoption was finalized;
(iv) The age of the child; and
(v) The date of the child's placement for adoption.
(2) For cases involving children emigrating from the United States,
information and reports on the total number of intercountry adoptions
undertaken by the agency or person each year in both Convention and
non-Convention cases and, for each case:
(i) The State from which the child emigrated;
(ii) The Convention country or other country to which the child
immigrated;
(iii) The State, Convention country, or other country in which the
adoption was finalized;
(iv) The age of the child; and
(v) The date of the child's placement for adoption.
(3) For each disrupted placement involving a Convention adoption,
information and reports about the disruption, including information on:
(i) The Convention country from which the child emigrated;
(ii) The State to which the child immigrated;
(iii) The age of the child;
(iv) The date of the child's placement for adoption;
(v) The reason(s) for and resolution(s) of the disruption of the
placement for adoption, including information on the child's re-
placement for adoption and final legal adoption;
(vi) The names of the agencies or persons that handled the
placement for adoption; and
(vii) The plans for the child.
(4) Wherever possible, for each dissolution of a Convention
adoption, information and reports on the dissolution, including
information on:
(i) The Convention country from which the child emigrated;
(ii) The State to which the child immigrated;
(iii) The age of the child;
(iv) The date of the child's placement for adoption;
(v) The reason(s) for and resolution(s) of the dissolution of the
adoption, to the extent known by the agency or person;
(vi) The names of the agencies or persons that handled the
placement for adoption; and
(vii) The plans for the child.
(5) Information on the shortest, longest, and average length of
time it takes to complete a Convention adoption, set forth by the
child's country of origin, calculated from the time the child is
matched with the prospective adoptive parent(s) until the time the
adoption is finalized by a court, excluding any period for appeal;
(6) Information on the range of adoption fees, including the
lowest, highest, average, and the median of such fees, set forth by the
child's country of origin, charged by the agency or person for
Convention adoptions involving children immigrating to the United
States in connection with their adoption.
(c) If the agency or person provides adoption services in cases not
subject to the Convention that involve a child emigrating from the
United States for the purpose of adoption or after an adoption has been
finalized, it provides such information as required by the Secretary
directly to the Secretary and demonstrates to the accrediting entity
that it has provided this information.
(d) The agency or person provides any of the information described
in paragraphs (a) through (c) of this section to the accrediting entity
or the Secretary within thirty days of request.
Service Planning and Delivery
Sec. 96.44 Acting as primary provider.
(a) When required by Sec. 96.14(a), the agency or person acts as
primary provider and adheres to the provisions in Sec. 96.14(b)
through (e). When acting as the primary provider, the agency or person
develops and implements a service plan for providing all adoption
services and provides all such services, either directly or through
arrangements with supervised providers, exempted providers, public
domestic authorities, competent authorities, Central Authorities,
public foreign authorities, or, to the extent permitted by Sec.
96.14(c), other foreign providers (agencies, persons, or other non-
governmental entities).
(b) The agency or person has an organizational structure, financial
and personnel resources, and policies and procedures in place that
demonstrate that the agency or person is capable of
[[Page 8147]]
acting as a primary provider in any Convention adoption case and, when
acting as the primary provider, provides appropriate supervision to
supervised providers and verifies the work of other foreign providers
in accordance with Sec. Sec. 96.45 and 96.46.
Sec. 96.45 Using supervised providers in the United States.
(a) The agency or person, when acting as the primary provider and
using supervised providers in the United States to provide adoption
services, ensures that each such supervised provider:
(1) Is in compliance with applicable State licensing and regulatory
requirements in all jurisdictions in which it provides adoption
services;
(2) Does not engage in practices inconsistent with the Convention's
principles of furthering the best interests of the child and preventing
the sale, abduction, exploitation, or trafficking of children; and
(3) Before entering into an agreement with the primary provider for
the provision of adoption services, discloses to the primary provider
the suitability information listed in Sec. 96.35.
(b) The agency or person, when acting as the primary provider and
using supervised providers in the United States to provide adoption
services, ensures that each such supervised provider operates under a
written agreement with the primary provider that:
(1) Identifies clearly the adoption service(s) to be provided by
the supervised provider and requires that the service(s) be provided in
accordance with the applicable service standard(s) for accreditation
and approval (for example: home study (Sec. 96.47); parent training
(Sec. 96.48); child background studies and consent (Sec. 96.53));
(2) Requires the supervised provider to comply with the following
standards regardless of the type of adoption services it is providing:
Sec. 96.36 (prohibition on child-buying), Sec. 96.34 (compensation),
Sec. 96.38 (employee training), Sec. 96.39(d) (waivers of liability),
and Sec. 96.41(b) through (e) (complaints);
(3) Identifies specifically the lines of authority between the
primary provider and the supervised provider, the employee of the
primary provider who will be responsible for supervision, and the
employee of the supervised provider who will be responsible for
ensuring compliance with the written agreement;
(4) States clearly the compensation arrangement for the services to
be provided and the fees and expenses to be charged by the supervised
provider;
(5) Specifies whether the supervised provider's fees and expenses
will be billed to and paid by the client(s) directly or billed to the
client through the primary provider;
(6) Provides that, if billing the client(s) directly for its
service, the supervised provider will give the client(s) an itemized
bill of all fees and expenses to be paid, with a written explanation of
how and when such fees and expenses will be refunded if the service is
not completed, and will return any funds collected to which the
client(s) may be entitled within sixty days of the completion of the
delivery of services;
(7) Requires the supervised provider to meet the same personnel
qualifications as accredited agencies and approved persons, as provided
for in Sec. 96.37, except that, for purposes of Sec. Sec.
96.37(e)(3), (f)(3), and (g)(2), the work of the employee must be
supervised by an employee of an accredited agency or approved person;
(8) Requires the supervised provider to limit the use of and
safeguard personal data gathered or transmitted in connection with an
adoption, as provided for in Sec. 96.42;
(9) Requires the supervised provider to respond within a reasonable
period of time to any request for information from the primary
provider, the Secretary, or the accrediting entity that issued the
primary provider's accreditation or approval;
(10) Requires the supervised provider to provide the primary
provider on a timely basis any data that is necessary to comply with
the primary provider's reporting requirements;
(11) Requires the supervised provider to disclose promptly to the
primary provider any changes in the suitability information required by
Sec. 96.35;
(12) Permits suspension or termination of the agreement on
reasonable notice if the primary provider has grounds to believe that
the supervised provider is not in compliance with the agreement or the
requirements of this section.
Sec. 96.46 Using providers in Convention countries.
(a) The agency or person, when acting as the primary provider and
using foreign supervised providers to provide adoption services in
Convention countries, ensures that each such foreign supervised
provider:
(1) Is in compliance with the laws of the Convention country in
which it operates;
(2) Does not engage in practices inconsistent with the Convention's
principles of furthering the best interests of the child and preventing
the sale, abduction, exploitation, or trafficking of children;
(3) Before entering into an agreement with the primary provider for
the provision of adoption services, discloses to the primary provider
the suitability information listed in Sec. 96.35, taking into account
the authorities in the Convention country that are analogous to the
authorities identified in that section;
(4) Does not have a pattern of licensing suspensions or other
sanctions and has not lost the right to provide adoption services in
any jurisdiction for reasons germane to the Convention; and
(5) Is accredited in the Convention country in which it operates,
if such accreditation is required by the laws of that Convention
country to perform the adoption services it is providing.
(b) The agency or person, when acting as the primary provider and
using foreign supervised providers to provide adoption services in
Convention countries, ensures that each such foreign supervised
provider operates under a written agreement with the primary provider
that:
(1) Identifies clearly the adoption service(s) to be provided by
the foreign supervised provider;
(2) Requires the foreign supervised provider, if responsible for
obtaining medical or social information on the child, to comply with
the standards in Sec. 96.49(d) through (j);
(3) Requires the foreign supervised provider to adhere to the
standard in Sec. 96.36(a) prohibiting child buying; and has written
policies and procedures in place reflecting the prohibitions in Sec.
96.36(a) and reinforces them in training programs for its employees and
agents;
(4) Requires the foreign supervised provider to compensate its
directors, officers, and employees who provide intercountry adoption
services on a fee-for-service, hourly wage, or salary basis, rather
than based on whether a child is placed for adoption, located for an
adoptive placement, or on a similar contingent fee basis;
(5) Identifies specifically the lines of authority between the
primary provider and the foreign supervised provider, the employee of
the primary provider who will be responsible for supervision, and the
employee of the supervised provider who will be responsible for
ensuring compliance with the written agreement;
(6) States clearly the compensation arrangement for the services to
be provided and the fees and expenses to be charged by the foreign
supervised provider;
[[Page 8148]]
(7) Specifies whether the foreign supervised provider's fees and
expenses will be billed to and paid by the client(s) directly or billed
to the client through the primary provider;
(8) Provides that, if billing the client(s) directly for its
service, the foreign supervised provider will give the client(s) an
itemized bill of all fees and expenses to be paid, with a written
explanation of how and when such fees and expenses will be refunded if
the service is not completed, and will return any funds collected to
which the client(s) may be entitled within sixty days of the completion
of the delivery of services;
(9) Requires the foreign supervised provider to respond within a
reasonable period of time to any request for information from the
primary provider, the Secretary, or the accrediting entity that issued
the primary provider's accreditation or approval;
(10) Requires the foreign supervised provider to provide the
primary provider on a timely basis any data that is necessary to comply
with the primary provider's reporting requirements;
(11) Requires the foreign supervised provider to disclose promptly
to the primary provider any changes in the suitability information
required by Sec. 96.35; and
(12) Permits suspension or termination of the agreement on
reasonable notice if the primary provider has grounds to believe that
the foreign supervised provider is not in compliance with the agreement
or the requirements of this section.
(c) The agency or person, when acting as the primary provider and,
in accordance with Sec. 96.14, using foreign providers that are not
under its supervision, verifies, through review of the relevant
documentation and other appropriate steps, that:
(1) Any necessary consent to termination of parental rights or to
adoption obtained by the foreign provider was obtained in accordance
with applicable foreign law and Article 4 of the Convention;
(2) Any background study and report on a child in a case involving
immigration to the United States (an incoming case) performed by the
foreign provider was performed in accordance with applicable foreign
law and Article 16 of the Convention.
(3) Any home study and report on prospective adoptive parent(s) in
a case involving emigration from the United States (an outgoing case)
performed by the foreign provider was performed in accordance with
applicable foreign law and Article 15 of the Convention.
Standards for Cases in Which a Child Is Immigrating to the United
States (Incoming Cases)
Sec. 96.47 Preparation of home studies in incoming cases.
(a) The agency or person ensures that a home study on the
prospective adoptive parent(s) (which for purposes of this section
includes the initial report and any supplemental statement submitted to
DHS) is completed that includes the following:
(1) Information about the prospective adoptive parent(s)' identity,
eligibility and suitability to adopt, background, family and medical
history, social environment, reasons for adoption, ability to undertake
an intercountry adoption, and the characteristics of the children for
whom the prospective adoptive parent(s) would be qualified to care
(specifying in particular whether they are willing and able to care for
a child with special needs);
(2) A determination whether the prospective adoptive parent(s) are
eligible and suited to adopt;
(3) A statement describing the counseling and training provided to
the prospective adoptive parent(s);
(4) The results of a criminal background check on the prospective
adoptive parent(s) and any other individual for whom a check is
required by 8 CFR 204.3(e);
(5) A full and complete statement of all facts relevant to the
eligibility and suitability of the prospective adoptive parent(s) to
adopt a child under any specific requirements identified to the
Secretary by the Central Authority of the child's country of origin;
and
(6) A statement in each copy of the home study that it is a true
and accurate copy of the home study that was provided to the
prospective adoptive parent(s) or DHS.
(b) The agency or person ensures that the home study is performed
in accordance with 8 CFR 204.3(e), and any applicable State law.
(c) Where the home study is not performed in the first instance by
an accredited agency or temporarily accredited agency, the agency or
person ensures that the home study is reviewed and approved in writing
by an accredited agency or temporarily accredited agency. The written
approval must include a determination that the home study:
(1) Includes all of the information required by paragraph (a) of
this section and is performed in accordance with 8 CFR 204.3(e), and
applicable State law; and
(2) Was performed by an individual who meets the requirements in
Sec. 96.37(f), or, if the individual is an exempted provider, ensures
that the individual meets the requirements for home study providers
established by 8 CFR 204.3(b).
(d) The agency or person takes all appropriate measures to ensure
the timely transmission of the same home study that was provided to the
prospective adoptive parent(s) or to DHS to the Central Authority of
the child's country of origin (or to an alternative authority
designated by that Central Authority).
Sec. 96.48 Preparation and training of prospective adoptive parent(s)
in incoming cases.
(a) The agency or person provides prospective adoptive parent(s)
with at least ten hours (independent of the home study) of preparation
and training, as described in paragraphs (b) and (c) of this section,
designed to promote a successful intercountry adoption. The agency or
person provides such training before the prospective adoptive parent(s)
travel to adopt the child or the child is placed with the prospective
adoptive parent(s) for adoption.
(b) The training provided by the agency or person addresses the
following topics:
(1) The intercountry adoption process, the general characteristics
and needs of children awaiting adoption, and the in-country conditions
that affect children in the Convention country from which the
prospective adoptive parent(s) plan to adopt;
(2) The effects on children of malnutrition, relevant environmental
toxins, maternal substance abuse, and of any other known genetic,
health, emotional, and developmental risk factors associated with
children from the expected country of origin;
(3) Information about the impact on a child of leaving familiar
ties and surroundings, as appropriate to the expected age of the child;
(4) Data on institutionalized children and the impact of
institutionalization on children, including the effect on children of
the length of time spent in an institution and of the type of care
provided in the expected country of origin;
(5) Information on attachment disorders and other emotional
problems that institutionalized or traumatized children and children
with a history of multiple caregivers may experience, before and after
their adoption;
(6) Information on the laws and adoption processes of the expected
country of origin, including foreseeable delays and impediments to
finalization of an adoption;
[[Page 8149]]
(7) Information on the long-term implications for a family that has
become multicultural through intercountry adoption; and
(8) An explanation of any reporting requirements associated with
Convention adoptions, including any post-placement or post-adoption
reports required by the expected country of origin.
(c) The agency or person also provides the prospective adoptive
parent(s) with training that allows them to be as fully prepared as
possible for the adoption of a particular child. This includes
counseling on:
(1) The child's history and cultural, racial, religious, ethnic,
and linguistic background;
(2) The known health risks in the specific region or country where
the child resides; and
(3) Any other medical, social, background, birth history,
educational data, developmental history, or any other data known about
the particular child.
(d) The agency or person provides such training through appropriate
methods, including:
(1) Collaboration among agencies or persons to share resources to
meet the training needs of prospective adoptive parents;
(2) Group seminars offered by the agency or person or other
agencies or training entities;
(3) Individual counseling sessions;
(4) Video, computer-assisted, or distance learning methods using
standardized curricula; or
(5) In cases where training cannot otherwise be provided, an
extended home study process, with a system for evaluating the
thoroughness with which the topics have been covered.
(e) The agency or person provides additional in-person,
individualized counseling and preparation, as needed, to meet the needs
of the prospective adoptive parent(s) in light of the particular child
to be adopted and his or her special needs, and any other training or
counseling needed in light of the child background study or the home
study.
(f) The agency or person provides the prospective adoptive
parent(s) with information about print, internet, and other resources
available for continuing to acquire information about common
behavioral, medical, and other issues; connecting with parent support
groups, adoption clinics and experts; and seeking appropriate help when
needed.
(g) The agency or person exempts prospective adoptive parent(s)
from all or part of the training and preparation that would normally be
required for a specific adoption only when the agency or person
determines that the prospective adoptive parent(s) have received
adequate prior training or have prior experience as parent(s) of
children adopted from abroad.
(h) The agency or person records the nature and extent of the
training and preparation provided to the prospective adoptive parent(s)
in the adoption record.
Sec. 96.49 Provision of medical and social information in incoming
cases.
(a) The agency or person provides a copy of the child's medical
records (including, to the fullest extent practicable, a correct and
complete English-language translation of such records) to the
prospective adoptive parent(s) as early as possible, but no later than
two weeks before either the adoption or placement for adoption, or the
date on which the prospective adoptive parent(s) travel to the
Convention country to complete all procedures in such country relating
to the adoption or placement for adoption, whichever is earlier.
(b) Where any medical record provided pursuant to paragraph (a) of
this section is a summary or compilation of other medical records, the
agency or person includes those underlying medical records in the
medical records provided pursuant to paragraph (a) if they are
available.
(c) The agency or person provides the prospective adoptive
parent(s) with any untranslated medical reports or videotapes or other
reports and provides an opportunity for the client(s) to arrange for
their own translation of the records, including a translation into a
language other than English, if needed.
(d) The agency or person itself uses reasonable efforts, or
requires its supervised provider in the child's country of origin who
is responsible for obtaining medical information about the child on
behalf of the agency or person to use reasonable efforts, to obtain
available information, including in particular:
(1) The date that the Convention country or other child welfare
authority assumed custody of the child and the child's condition at
that time;
(2) History of any significant illnesses, hospitalizations, special
needs, and changes in the child's condition since the Convention
country or other child welfare authority assumed custody of the child;
(3) Growth data, including prenatal and birth history, and
developmental status over time and current developmental data at the
time of the child's referral for adoption; and
(4) Specific information on the known health risks in the specific
region or country where the child resides.
(e) If the agency or person provides medical information, other
than the information provided by public foreign authorities, to the
prospective adoptive parent(s) from an examination by a physician or
from an observation of the child by someone who is not a physician, the
agency or person uses reasonable efforts to include the following:
(1) The name and credentials of the physician who performed the
examination or the individual who observed the child;
(2) The date of the examination or observation; how the report's
information was retained and verified; and if anyone directly
responsible for the child's care has reviewed the report;
(3) If the medical information includes references, descriptions,
or observations made by any individual other than the physician who
performed the examination or the individual who performed the
observation, the identity of that individual, the individual's
training, and information on what data and perceptions the individual
used to draw his or her conclusions;
(4) A review of hospitalizations, significant illnesses, and other
significant medical events, and the reasons for them;
(5) Information about the full range of any tests performed on the
child, including tests addressing known risk factors in the child's
country of origin; and
(6) Current health information.
(f) The agency or person itself uses reasonable efforts, or
requires its supervised provider in the child's country of origin who
is responsible for obtaining social information about the child on
behalf of the agency or person to use reasonable efforts, to obtain
available information, including in particular:
(1) Information about the child's birth family and prenatal history
and cultural, racial, religious, ethnic, and linguistic background;
(2) Information about all of the child's past and current
placements prior to adoption, including, but not limited to any social
work or court reports on the child and any information on who assumed
custody and provided care for the child; and
(3) Information about any birth siblings whose existence is known
to the agency or person, or its supervised provider, including
information about such siblings' whereabouts.
(g) Where any of the information listed in paragraphs (d) and (f)
of this
[[Page 8150]]
section cannot be obtained, the agency or person documents in the
adoption record the efforts made to obtain the information and why it
was not obtainable. The agency or person continues to use reasonable
efforts to secure those medical or social records that could not be
obtained up until the adoption is finalized.
(h) Where available, the agency or person provides information for
contacting the examining physician or the individual who made the
observations to any physician engaged by the prospective adoptive
parent(s), upon request.
(i) The agency or person ensures that videotapes and photographs of
the child are identified by the date on which the videotape or
photograph was recorded or taken and that they were made in compliance
with the laws in the country where recorded or taken.
(j) The agency or person does not withhold from or misrepresent to
the prospective adoptive parent(s) any available medical, social, or
other pertinent information concerning the child.
(k) The agency or person does not withdraw a referral until the
prospective adoptive parent(s) have had two weeks (unless extenuating
circumstances involving the child's best interests require a more
expedited decision) to consider the needs of the child and their
ability to meet those needs, and to obtain physician review of medical
information and other descriptive information, including videotapes of
the child if available.
Sec. 96.50 Placement and post-placement monitoring until final
adoption in incoming cases.
(a) The agency or person takes all appropriate measures to ensure
that the transfer of the child takes place in secure and appropriate
circumstances, with properly trained and qualified escorts, if used,
and, if possible, in the company of the prospective adoptive parent(s).
(b) In the post-placement phase, the agency or person monitors and
supervises the child's placement to ensure that the placement remains
in the best interests of the child, and ensures that at least the
number of home visits required by State law or by the child's country
of origin are performed, whichever is greater.
(c) When a placement for adoption is in crisis in the post-
placement phase, the agency or person makes an effort to provide or
arrange for counseling by an individual with appropriate skills to
assist the family in dealing with the problems that have arisen.
(d) If counseling does not succeed in resolving the crisis and the
placement is disrupted, the agency or person assuming custody of the
child assumes responsibility for making another placement of the child.
(e) The agency or person acts promptly and in accord with any
applicable legal requirements to remove the child when the placement
may no longer be in the child's best interests, to provide temporary
care, to find an eventual adoptive placement for the child, and, in
consultation with the Secretary, to inform the Central Authority of the
child's country of origin about any new prospective adoptive parent(s).
(1) In all cases where removal of a child from a placement is
considered, the agency or person considers the child's views when
appropriate in light of the child's age and maturity and, when required
by State law, obtains the consent of the child prior to removal.
(2) The agency or person does not return from the United States a
child placed for adoption in the United States unless the Central
Authority of the country of origin and the Secretary have approved the
return in writing.
(f) The agency or person includes in the adoption services contract
with the prospective adoptive parent(s) a plan describing the agency's
or person's responsibilities if a placement for adoption is disrupted.
This plan addresses:
(1) Who will have legal and financial responsibility for transfer
of custody in an emergency or in the case of impending disruption and
for the care of the child;
(2) If the disruption takes place after the child has arrived in
the United States, under what circumstances the child will, as a last
resort, be returned to the child's country of origin, if that is
determined to be in the child's best interests;
(3) How the child's wishes, age, length of time in the United
States, and other pertinent factors will be taken into account; and
(4) How the Central Authority of the child's country of origin and
the Secretary will be notified.
(g) The agency or person provides post-placement reports until
final adoption of a child to the Convention country when required by
the Convention country. Where such reports are required, the agency or
person:
(1) Informs the prospective adoptive parent(s) in the adoption
services contract of the requirement prior to the referral of the child
for adoption;
(2) Informs the prospective adoptive parent(s) that they will be
required to provide all necessary information for the report(s); and
(3) Discloses who will prepare the reports and the fees that will
be charged.
(h) The agency or person takes steps to:
(1) Ensure that an order declaring the adoption as final is sought
by the prospective adoptive parent(s), and entered in compliance with
section 301(c) of the IAA (42 U.S.C. 14931(c)); and
(2) Notify the Secretary of the finalization of the adoption within
thirty days of the entry of the order.
Sec. 96.51 Post-adoption services in incoming cases.
(a) The agency or person takes all appropriate measures to ensure
that the transfer of the child takes place in secure and appropriate
circumstances, with properly trained and qualified escorts, if used,
and, if possible, in the company of the adoptive parent(s).
(b) The agency or person informs the prospective adoptive parent(s)
in the adoption services contract whether the agency or person will or
will not provide any post-adoption services. The agency or person also
informs the prospective adoptive parent(s) in the adoption services
contract whether it will provide services if an adoption is dissolved,
and, if it indicates it will, it provides a plan describing the
agency's or person's responsibilities.
(c) When post-adoption reports are required by the child's country
of origin, the agency or person includes a requirement for such reports
in the adoption services contract and makes good-faith efforts to
encourage adoptive parent(s) to provide such reports.
(d) The agency or person does not return from the United States an
adopted child whose adoption has been dissolved unless the Central
Authority of the country of origin and the Secretary have approved the
return in writing.
Sec. 96.52 Performance of Convention communication and coordination
functions in incoming cases.
(a) The agency or person keeps the Central Authority of the
Convention country and the Secretary informed as necessary about the
adoption process and the measures taken to complete it, as well as
about the progress of the placement if a probationary period is
required.
(b) The agency or person takes all appropriate measures, consistent
with the procedures of the U.S. Central Authority and of the Convention
country, to:
(1) Transmit on a timely basis the home study to the Central
Authority or
[[Page 8151]]
other competent authority of the child's country of origin;
(2) Obtain the child background study, proof that the necessary
consents to the child's adoption have been obtained, and the necessary
determination that the prospective placement is in the child's best
interests, from the Central Authority or other competent authority in
the child's country of origin;
(3) Provide confirmation that the prospective adoptive parent(s)
agree to the adoption to the Central Authority or other competent
authority in the child's country of origin; and
(4) Transmit the determination that the child is or will be
authorized to enter and reside permanently in the United States to the
Central Authority or other competent authority in the child's country
of origin.
(c) The agency or person takes all necessary and appropriate
measures, consistent with the procedures of the Convention country, to
obtain permission for the child to leave his or her country of origin
and to enter and reside permanently in the United States.
(d) Where the transfer of the child does not take place, the agency
or person returns the home study on the prospective adoptive parent(s)
and/or the child background study to the authorities that forwarded
them.
(e) The agency or person takes all necessary and appropriate
measures to perform any tasks in a Convention adoption case that the
Secretary identifies are required to comply with the Convention, the
IAA, or any regulations implementing the IAA.
Standards for Cases in Which a Child Is Emigrating From the United
States (Outgoing Cases)
Sec. 96.53 Background studies on the child and consents in outgoing
cases.
(a) The agency or person takes all appropriate measures to ensure
that a child background study is performed that includes information
about the child's identity, adoptability, background, social
environment, family history, medical history (including that of the
child's family), and any special needs of the child. The child
background study must include the following:
(1) Information that demonstrates that consents were obtained in
accordance with paragraph (c) of this section;
(2) Information that demonstrates consideration of the child's
wishes and opinions in accordance with paragraph (d) of this section
and;
(3) Information that confirms that the child background study was
prepared either by an exempted provider or by an individual who meets
the requirements set forth in Sec. 96.37(g).
(b) Where the child background study is not prepared in the first
instance by an accredited agency or temporarily accredited agency, the
agency or person ensures that the child background study is reviewed
and approved in writing by an accredited agency or temporarily
accredited agency. The written approval must include a determination
that the background study includes all the information required by
paragraph (a) of this section.
(c) The agency or person takes all appropriate measures to ensure
that consents have been obtained as follows:
(1) The persons, institutions, and authorities whose consent is
necessary for adoption have been counseled as necessary and duly
informed of the effects of their consent, in particular, whether or not
an adoption will result in the termination of the legal relationship
between the child and his or her family of origin;
(2) All such persons, institutions, and authorities have given
their consents;
(3) The consents have been expressed or evidenced in writing in the
required legal form, have been given freely, were not induced by
payments or compensation of any kind, and have not been withdrawn;
(4) The consent of the mother, where required, was executed after
the birth of the child;
(5) The child, as appropriate in light of his or her age and
maturity, has been counseled and duly informed of the effects of the
adoption and of his or her consent to the adoption; and
(6) The child's consent, where required, has been given freely, in
the required legal form, and expressed or evidenced in writing and not
induced by payment or compensation of any kind.
(d) If the child is twelve years of age or older, or as otherwise
provided by State law, the agency or person gives due consideration to
the child's wishes or opinions before determining that an intercountry
placement is in the child's best interests.
(e) The agency or person prior to the child's adoption takes all
appropriate measures to transmit to the Central Authority or other
competent authority or accredited bodies of the Convention country the
child background study, proof that the necessary consents have been
obtained, and the reasons for its determination that the placement is
in the child's best interests. In doing so, the agency or person, as
required by Article 16(2) of the Convention, does not reveal the
identity of the mother or the father if these identities may not be
disclosed under State law.
Sec. 96.54 Placement standards in outgoing cases.
(a) Except in the case of adoption by relatives or in the case in
which the birth parent(s) have identified specific prospective adoptive
parent(s) or in other special circumstances accepted by the State court
with jurisdiction over the case, the agency or person makes reasonable
efforts to find a timely adoptive placement for the child in the United
States by:
(1) Disseminating information on the child and his or her
availability for adoption through print, media, and internet resources
designed to communicate with potential prospective adoptive parent(s)
in the United States;
(2) Listing information about the child on a national or State
adoption exchange or registry for at least sixty calendar days after
the birth of the child;
(3) Responding to inquiries about adoption of the child; and
(4) Providing a copy of the child background study to potential
U.S. prospective adoptive parent(s).
(b) The agency or person demonstrates to the satisfaction of the
State court with jurisdiction over the adoption that sufficient
reasonable efforts (including no efforts, when in the best interests of
the child) to find a timely and qualified adoptive placement for the
child in the United States were made.
(c) In placing the child for adoption, the agency or person:
(1) To the extent consistent with State law, gives significant
weight to the placement preferences expressed by the birth parent(s) in
all voluntary placements;
(2) To the extent consistent with State law, makes diligent efforts
to place siblings together for adoption and, where placement together
is not possible, to arrange for contact between separated siblings,
unless it is in the best interests of one of the siblings that such
efforts or contact not take place; and
(3) Complies with all applicable requirements of the Indian Child
Welfare Act.
(d) The agency or person complies with any State law requirements
pertaining to the provision and payment of independent legal counsel
for birth parents. If State law requires full disclosure to the birth
parent(s) that the child is to be adopted by parent(s) who reside
outside the United States, the agency or person provides such
disclosure.
[[Page 8152]]
(e) The agency or person takes all appropriate measures to give due
consideration to the child's upbringing and to his or her ethnic,
religious, and cultural background.
(f) When particular prospective adoptive parent(s) in a Convention
country have been identified, the agency or person takes all
appropriate measures to determine whether the envisaged placement is in
the best interests of the child, on the basis of the child background
study and the home study on the prospective adoptive parent(s).
(g) The agency or person thoroughly prepares the child for the
transition to the Convention country, using age-appropriate services
that address the child's likely feelings of separation, grief, and loss
and difficulties in making any cultural, religious, racial, ethnic, or
linguistic adjustment.
(h) The agency or person takes all appropriate measures to ensure
that the transfer of the child takes place in secure and appropriate
circumstances, with properly trained and qualified escorts, if used,
and, if possible, in the company of the adoptive parent(s) or the
prospective adoptive parent(s);
(i) Before the placement for adoption proceeds, the agency or
person identifies the entity in the receiving country that will provide
post-placement supervision and reports, if required by State law, and
ensures that the child's adoption record contains the information
necessary for contacting that entity.
(j) The agency or person ensures that the child's adoption record
includes the order granting the adoption or legal custody for the
purpose of adoption in the Convention country.
(k) The agency or person consults with the Secretary before
arranging for the return to the United States of any child who has
emigrated to a Convention country in connection with the child's
adoption.
Sec. 96.55 Performance of Convention communication and coordination
functions in outgoing cases.
(a) The agency or person keeps the Central Authority of the
Convention country and the Secretary informed as necessary about the
adoption process and the measures taken to complete it, as well as
about the progress of the placement if a probationary period is
required.
(b) The agency or person ensures that:
(1) Copies of all documents from the State court proceedings,
including the order granting the adoption or legal custody, are
provided to the Secretary;
(2) Any additional information on the adoption is transmitted to
the Secretary promptly upon request; and
(3) It otherwise facilitates, as requested, the Secretary's ability
to provide the certification that the child has been adopted or that
custody has been granted for the purpose of adoption, in accordance
with the Convention and the IAA.
(c) Where the transfer of the child does not take place, the agency
or person returns the home study on the prospective adoptive parent(s)
and/or the child background study to the authorities that forwarded
them.
(d) The agency or person provides to the State court with
jurisdiction over the adoption:
(1) Proof that consents have been given as required in Sec.
96.53(c);
(2) An English copy or certified English translation of the home
study on the prospective adoptive parent(s) in the Convention country,
and the determination by the agency or person that the placement with
the prospective adoptive parent(s) is in the child's best interests;
(3) Evidence that the prospective adoptive parent(s) in the
Convention country agree to the adoption;
(4) Evidence that the child will be authorized to enter and reside
permanently in the Convention country or on the same basis as that of
the prospective adoptive parent(s); and
(5) Evidence that the Central Authority of the Convention country
has agreed to the adoption, if such consent is necessary under its laws
for the adoption to become final.
(e) The agency or person makes the showing required by Sec.
96.54(b) to the State court with jurisdiction over the adoption.
(f) The agency or person takes all necessary and appropriate
measures to perform any tasks in a Convention adoption case that the
Secretary identifies are required to comply with the Convention, the
IAA, or any regulations implementing the IAA.
Sec. 96.56 [Reserved]
Subpart G--Decisions on Applications for Accreditation or Approval
Sec. 96.57 Scope.
The provisions in this subpart establish the procedures for when
the accrediting entity issues decisions on applications for
accreditation or approval. Temporary accreditation is governed by the
provisions in subpart N of this part. Unless otherwise provided in
subpart N of this part, the provisions in this subpart do not apply to
agencies seeking temporary accreditation.
Sec. 96.58 Notification of accreditation and approval decisions.
(a) The accrediting entity must notify agencies and persons that
applied by the transitional application deadline of its accreditation
and approval decisions on a uniform notification date to be established
by the Secretary. On that date, the accrediting entity must inform each
applicant and the Secretary in writing whether the agency's or person's
application has been granted or denied or remains pending. The
accrediting entity may not provide any information about its
accreditation or approval decisions to any agency or person or to the
public until the uniform notification date. If the Secretary requests
information on the interim or final status of an applicant prior to the
uniform notification date, the accrediting entity must provide such
information to the Secretary.
(b) Notwithstanding the provisions in paragraph (a) of this
section, the accrediting entity may, in its discretion, communicate
with agencies and persons that applied by the transitional application
date about the status of their pending applications for the sole
purpose of affording them an opportunity to correct deficiencies that
may hinder or prevent accreditation or approval.
(c) The accrediting entity must routinely inform applicants that
applied after the transitional application date in writing of its
accreditation and approval decisions, as those decisions are finalized,
but may not do so earlier than the uniform notification date referenced
in paragraph (a) of this section. The accrediting entity must routinely
provide this information to the Secretary in writing.
Sec. 96.59 Review of decisions to deny accreditation or approval.
(a) There is no administrative or judicial review of an accrediting
entity's decision to deny an application for accreditation or approval.
As provided in Sec. 96.79, a decision to deny for these purposes
includes:
(1) A denial of the agency's or person's initial application for
accreditation or approval;
(2) A denial of an application made after cancellation or refusal
to renew by the accrediting entity; and
(3) A denial of an application made after cancellation or debarment
by the Secretary.
(b) The agency or person may petition the accrediting entity for
reconsideration of a denial. The accrediting entity must establish
internal review procedures that provide an opportunity for an agency or
person
[[Page 8153]]
to petition for reconsideration of the denial.
Sec. 96.60 Length of accreditation or approval period.
(a) Except as provided in paragraph (b) of this section, the
accrediting entity will accredit or approve an agency or person for a
period of four years. The accreditation or approval period will
commence either on the date the Convention enters into force for the
United States (if the agency or person is accredited or approved before
that date) or on the date that the agency or person is granted
accreditation or approval.
(b) In order to stagger the renewal requests from agencies and
persons that applied for accreditation or approval by the transitional
application deadline, to prevent renewal requests from coming due at
the same time, the accrediting entity may accredit or approve some
agencies and persons that applied by the transitional application date
for a period of between three and five years for their first
accreditation or approval cycle. The accrediting entity must establish
criteria, to be approved by the Secretary, for choosing which agencies
and persons it will accredit or approve for a period of other than four
years.
Sec. 96.61 [Reserved]
Subpart H--Renewal of Accreditation or Approval
Sec. 96.62 Scope.
The provisions in this subpart establish the procedures for renewal
of an agency's accreditation or a person's approval. Temporary
accreditation may not be renewed, and the provisions in this subpart do
not apply to temporarily accredited agencies.
Sec. 96.63 Renewal of accreditation or approval.
(a) The accrediting entity must advise accredited agencies and
approved persons that it monitors of the date by which they should seek
renewal of their accreditation or approval so that the renewal process
can reasonably be completed prior to the expiration of the agency's or
person's current accreditation or approval. If the accredited agency or
approved person does not wish to renew its accreditation or approval,
it must immediately notify the accrediting entity and take all
necessary steps to complete its Convention cases and to transfer its
pending Convention cases and adoption records to other accredited
agencies, approved persons, or a State archive, as appropriate, under
the oversight of the accrediting entity, before its accreditation or
approval expires.
(b) The accredited agency or approved person may seek renewal from
a different accrediting entity than the one that handled its prior
application. If it changes accrediting entities, the accredited agency
or approved person must so notify the accrediting entity that handled
its prior application by the date on which the agency or person must
(pursuant to paragraph (a) of this section) seek renewal of its status.
The accredited agency or approved person must follow the new
accrediting entity's instructions when submitting a request for renewal
and preparing documents and other information for the new accrediting
entity to review in connection with the renewal request.
(c) The accrediting entity must process the request for renewal in
a timely fashion. Before deciding whether to renew the accreditation or
approval of an agency or person, the accrediting entity may, in its
discretion, advise the agency or person of any deficiencies that may
hinder or prevent its renewal and defer a decision to allow the agency
or person to correct the deficiencies. The accrediting entity must
notify the accredited agency, approved person, and the Secretary in
writing when it renews or refuses to renew an agency's or person's
accreditation or approval.
(d) Sections 96.24, 96.25, and 96.26, which relate to evaluation
procedures and to requests for and use of information, and Sec. 96.27,
which relates to the substantive criteria for evaluating applicants for
accreditation or approval, other than Sec. 96.27(e), will govern
determinations about whether to renew accreditation or approval. In
lieu of Sec. 96.27(e), if the agency or person has been suspended by
an accrediting entity or the Secretary during its most current
accreditation or approval cycle, the accrediting entity may take the
reasons underlying the suspension into account when determining whether
to renew accreditation or approval and may refuse to renew
accreditation or approval based on the prior suspension.
Sec. 96.64 [Reserved]
Subpart I--Routine Oversight by Accrediting Entities
Sec. 96.65 Scope.
The provisions in this subpart establish the procedures for routine
oversight of accredited agencies and approved persons. Temporary
accreditation is governed by the provisions of subpart N of this part.
Unless otherwise provided in subpart N of this part, the provisions in
this subpart do not apply to temporarily accredited agencies.
Sec. 96.66 Oversight of accredited agencies and approved persons by
the accrediting entity.
(a) The accrediting entity must monitor agencies it has accredited
and persons it has approved at least annually to ensure that they are
in substantial compliance with the standards in subpart F of this part,
as determined using a method approved by the Secretary in accordance
with Sec. 96.27(d). The accrediting entity must investigate complaints
about accredited agencies and approved persons, as provided in subpart
J of this part.
(b) An accrediting entity may, on its own initiative, conduct site
visits to inspect an agency's or person's premises or programs, with or
without advance notice, for purposes of random verification of its
continued compliance or to investigate a complaint. The accrediting
entity may consider any information about the agency or person that
becomes available to it about the compliance of the agency or person.
The provisions of Sec. Sec. 96.25 and 96.26 govern requests for and
use of information.
(c) The accrediting entity must require accredited agencies or
approved persons to attest annually that they have remained in
substantial compliance and to provide supporting documentation to
indicate such ongoing compliance with the standards in subpart F of
this part.
Sec. 96.67 [Reserved]
Subpart J--Oversight Through Review of Complaints
Sec. 96.68 Scope.
The provisions in this subpart establish the procedures that the
accrediting entity will use for processing complaints against
accredited agencies and approved persons (including complaints
concerning their use of supervised providers) that raise an issue of
compliance with the Convention, the IAA, or the regulations
implementing the IAA, as determined by the accrediting entity or the
Secretary, and that are therefore relevant to the oversight functions
of the accrediting entity or the Secretary. Temporary accreditation is
governed by the provisions of subpart N of this part; as provided in
Sec. 96.103, procedures for processing complaints on temporarily
accredited agencies must comply with this subpart.
Sec. 96.69 Filing of complaints against accredited agencies and
approved persons.
(a) Complaints described in Sec. 96.68 will be subject to review
by the accrediting entity pursuant to Sec. Sec. 96.71
[[Page 8154]]
and 96.72, when submitted as provided in this section and Sec. 96.70.
(b) Complaints against accredited agencies and approved persons by
parties to specific Convention adoption cases and relating to that case
must first be submitted by the complainant in writing to the primary
provider and to the agency or person providing adoption services, if a
U.S. provider different from the primary provider. If the complaint
cannot be resolved through the complaint processes of the primary
provider or the agency or person providing the services (if different),
or if the complaint was resolved by an agreement to take action but the
primary provider or the agency or person providing the service (if
different) failed to take such action within thirty days of agreeing to
do so, the complaint may then be filed with the Complaint Registry in
accordance with Sec. 96.70.
(c) An individual who is not party to a specific Convention
adoption case but who has information about an accredited agency or
approved person may provide that information by filing it in the form
of a complaint with the Complaint Registry in accordance with Sec.
96.70.
(d) A Federal, State, or local government official or a foreign
Central Authority may file a complaint with the Complaint Registry in
accordance with Sec. 96.70, or may raise the matter in writing
directly with the accrediting entity, who will record the complaint in
the Complaint Registry, or with the Secretary, who will record the
complaint in the Complaint Registry, if appropriate, and refer it to
the accrediting entity for review pursuant to Sec. 96.71 or take such
other action as the Secretary deems appropriate.
Sec. 96.70 Operation of the Complaint Registry.
(a) The Secretary will establish a Complaint Registry to support
the accrediting entities in fulfilling their oversight
responsibilities, including the responsibilities of recording,
screening, referring, and otherwise taking action on complaints
received, and to support the Secretary in the Secretary's oversight
responsibilities as the Secretary deems appropriate. The Secretary may
provide for the Complaint Registry to be funded in whole or in part
from fees collected by the Secretary pursuant to section 403(b) of the
IAA (42 U.S.C. 14943(b)) or by the accrediting entities.
(b) The Complaint Registry will:
(1) Receive and maintain records of complaints about accredited
agencies, temporarily accredited agencies, and approved persons
(including complaints concerning their use of supervised providers) and
make such complaints available to the appropriate accrediting entity
and the Secretary;
(2) Receive and maintain information regarding action taken to
resolve each complaint by the accrediting entity or the Secretary;
(3) Track compliance with any deadlines applicable to the
resolution of complaints;
(4) Generate reports designed to show possible patterns of
complaints; and
(5) Perform such other functions as the Secretary may determine.
(c) Forms and information necessary to submit complaints to the
Complaint Registry electronically or by such other means as the
Secretary may determine will be accessible through the Department's
website to persons who wish to file complaints. Such forms will be
designed to ensure that each complaint complies with the requirements
of Sec. 96.69.
(d) Accrediting entities will have access to, and the capacity to
enter data into, the Complaint Registry as the Secretary deems
appropriate.
(e) Nothing in this part shall be construed to limit the
Secretary's authority to take such action as the Secretary deems
appropriate with respect to complaints.
Sec. 96.71 Review by the accrediting entity of complaints against
accredited agencies and approved persons.
(a) The accrediting entity must establish written procedures,
including deadlines, for recording, investigating, and acting upon
complaints it receives pursuant to Sec. Sec. 96.69 and 96.70(b)(1).
The procedures must be consistent with this section and be approved by
the Secretary. The accrediting entity must make written information
about its complaint procedures available upon request.
(b) If the accrediting entity determines that a complaint
implicates the Convention, the IAA, or the regulations implementing the
IAA:
(1) The accrediting entity must verify that the complainant has
already attempted to resolve the complaint as described in Sec.
96.69(b) and, if not, may refer the complaint to the agency or person,
or to the primary provider, for attempted resolution through its
internal complaint procedures;
(2) The accrediting entity may conduct whatever investigative
activity (including site visits) it considers necessary to determine
whether any relevant accredited agency or approved person may maintain
accreditation or approval as provided in Sec. 96.27. The provisions of
Sec. Sec. 96.25 and 96.26 govern requests for and use of information.
The accrediting entity must give priority to complaints submitted
pursuant to Sec. 96.69(d);
(3) If the accrediting entity determines that the agency or person
may not maintain accreditation or approval, it must take adverse action
pursuant to subpart K of this part.
(c) When the accrediting entity has completed its complaint review
process, it must provide written notification of the outcome of its
investigation, and any actions taken, to the complainant, or to any
other entity that referred the information.
(d) The accrediting entity will enter information about the
outcomes of its investigations and its actions on complaints into the
Complaint Registry as provided in its agreement with the Secretary.
(e) The accrediting entity may not take any action to discourage an
individual from, or retaliate against an individual for, making a
complaint, expressing a grievance, questioning the conduct of, or
expressing an opinion about the performance of an accredited agency, an
approved person, or the accrediting entity.
Sec. 96.72 Referral of complaints to the Secretary and other
authorities.
(a) An accrediting entity must report promptly to the Secretary any
substantiated complaint that:
(1) Reveals that an accredited agency or approved person has
engaged in a pattern of serious, willful, grossly negligent, or
repeated failures to comply with the standards in subpart F of this
part; or
(2) Indicates that continued accreditation or approval would not be
in the best interests of the children and families concerned.
(b) An accrediting entity must, after consultation with the
Secretary, refer, as appropriate, to a State licensing authority, the
Attorney General, or other law enforcement authorities any
substantiated complaints that involve conduct that is:
(1) Subject to the civil or criminal penalties imposed by section
404 of the IAA (42 U.S.C. 14944);
(2) In violation of the Immigration and Nationality Act (8 U.S.C.
1101 et seq.); or
(3) Otherwise in violation of Federal, State, or local law.
(c) When an accrediting entity makes a report pursuant to
paragraphs (a) or (b) of this section, it must indicate whether it is
recommending that the Secretary take action to debar the agency or
person, either temporarily or permanently.
[[Page 8155]]
Sec. 96.73 [Reserved]
Subpart K--Adverse Action by the Accrediting Entity
Sec. 96.74 Scope.
The provisions in this subpart establish the procedures governing
adverse action by an accrediting entity against accredited agencies and
approved persons. Temporary accreditation is governed by the provisions
in subpart N of this part. Unless otherwise provided in subpart N of
this part, the provisions of this subpart do not apply to temporarily
accredited agencies.
Sec. 96.75 Adverse action against accredited agencies or approved
persons not in substantial compliance.
The accrediting entity must take adverse action when it determines
that an accredited agency or approved person may not maintain
accreditation or approval as provided in Sec. 96.27. The accrediting
entity is authorized to take any of the following actions against an
accredited agency or approved person whose compliance the entity
oversees. Each of these actions by an accrediting entity is considered
an adverse action for purposes of the IAA and the regulations in this
part:
(a) Suspending accreditation or approval;
(b) Canceling accreditation or approval;
(c) Refusing to renew accreditation or approval;
(d) Requiring an accredited agency or approved person to take a
specific corrective action to bring itself into compliance; and
(e) Imposing other sanctions including, but not limited to,
requiring an accredited agency or approved person to cease providing
adoption services in a particular case or in a specific Convention
country.
Sec. 96.76 Procedures governing adverse action by the accrediting
entity.
(a) The accrediting entity must decide which adverse action to take
based on the seriousness and type of violation and on the extent to
which the accredited agency or approved person has corrected or failed
to correct deficiencies of which it has been previously informed. The
accrediting entity must notify an accredited agency or approved person
in writing of its decision to take an adverse action against the agency
or person. The accrediting entity's written notice must identify the
deficiencies prompting imposition of the adverse action.
(b) Before taking adverse action, the accrediting entity may, in
its discretion, advise an accredited agency or approved person in
writing of any deficiencies in its performance that may warrant an
adverse action and provide it with an opportunity to demonstrate that
an adverse action would be unwarranted before the adverse action is
imposed. If the accrediting entity takes the adverse action without
such prior notice, it must provide a similar opportunity to demonstrate
that the adverse action was unwarranted after the adverse action is
imposed, and may withdraw the adverse action based on the information
provided.
(c) The provisions in Sec. Sec. 96.25 and 96.26 govern requests
for and use of information.
Sec. 96.77 Responsibilities of the accredited agency, approved
person, and accrediting entity following adverse action by the
accrediting entity.
(a) If the accrediting entity takes an adverse action against an
agency or person, the action will take effect immediately unless the
accrediting entity agrees to a later effective date.
(b) If the accrediting entity suspends or cancels the accreditation
or approval of an agency or person, the agency or person must
immediately, or by any later effective date set by the accrediting
entity, cease to provide adoption services in all Convention cases. In
the case of suspension, it must consult with the accrediting entity
about whether to transfer its Convention adoption cases and adoption
records. In the case of cancellation, it must execute the plans
required by Sec. Sec. 96.33(e) and 96.42(d) under the oversight of the
accrediting entity, and transfer its Convention adoption cases and
adoption records to other accredited agencies, approved persons, or a
State archive, as appropriate. When the agency or person is unable to
transfer such Convention cases or adoption records in accordance with
the plans or as otherwise agreed by the accrediting entity, the
accrediting entity will so advise the Secretary who, with the
assistance of the accrediting entity, will coordinate efforts to
identify other accredited agencies or approved persons to assume
responsibility for the cases, and to transfer the records to other
accredited agencies or approved persons, or to public domestic
authorities, as appropriate.
(c) If the accrediting entity refuses to renew the accreditation or
approval of an agency or person, the agency or person must cease to
provide adoption services in all Convention cases upon expiration of
its existing accreditation or approval. It must take all necessary
steps to complete its Convention cases before its accreditation or
approval expires. It must also execute the plans required by Sec. Sec.
96.33(e) and 96.42(d) under the oversight of the accrediting entity,
and transfer its pending Convention cases and adoption records to other
accredited agencies, approved persons, or a State archive, as
appropriate. When the agency or person is unable to transfer such
Convention cases or adoption records in accordance with the plans or as
otherwise agreed by the accrediting entity, the accrediting entity will
so advise the Secretary who, with the assistance of the accrediting
entity, will coordinate efforts to identify other accredited agencies
or approved persons to assume responsibility for the cases and to
transfer the records to other accredited agencies or approved persons,
or to public domestic authorities, as appropriate.
(d) The accrediting entity must notify the Secretary, in accordance
with procedures established in its agreement with the Secretary, when
it takes an adverse action that changes the accreditation or approval
status of an agency or person. The accrediting entity must also notify
the relevant State licensing authority as provided in the agreement.
Sec. 96.78 Accrediting entity procedures to terminate adverse action.
(a) The accrediting entity must maintain internal petition
procedures, approved by the Secretary, to give accredited agencies and
approved persons an opportunity to terminate adverse actions on the
grounds that the deficiencies necessitating the adverse action have
been corrected. The accrediting entity must inform the agency or person
of these procedures when it informs them of the adverse action pursuant
to Sec. 96.76(a). An accrediting entity is not required to maintain
procedures to terminate adverse actions on any other grounds, or to
maintain procedures to review its adverse actions, and must obtain the
consent of the Secretary if it wishes to make such procedures
available.
(b) An accrediting entity may terminate an adverse action it has
taken only if the agency or person demonstrates to the satisfaction of
the accrediting entity that the deficiencies that led to the adverse
action have been corrected. The accrediting entity must notify an
agency or person in writing of its decision on the petition to
terminate the adverse action.
(c) If the accrediting entity described in paragraph (b) of this
section is no longer providing accreditation or approval services, the
agency or person may petition any accrediting entity with jurisdiction
over its application.
[[Page 8156]]
(d) If the accrediting entity cancels or refuses to renew an
agency's or person's accreditation or approval, and does not terminate
the adverse action pursuant to paragraph (b) of this section, the
agency or person may reapply for accreditation or approval. Before
doing so, the agency or person must request and obtain permission to
make a new application from the accrediting entity that cancelled or
refused to renew its accreditation or approval or, if such entity is no
longer designated as an accrediting entity, from any alternate
accrediting entity designated by the Secretary to give such permission.
The accrediting entity may grant such permission only if the agency or
person demonstrates to the satisfaction of the accrediting entity that
the specific deficiencies that led to the cancellation or refusal to
renew have been corrected.
(e) If the accrediting entity grants the agency or person
permission to reapply, the agency or person may file an application
with that accrediting entity in accordance with subpart D of this part.
(f) Nothing in this section shall be construed to prevent an
accrediting entity from withdrawing an adverse action if it concludes
that the action was based on a mistake of fact or was otherwise in
error. Upon taking such action, the accrediting entity will take
appropriate steps to notify the Secretary and the Secretary will take
appropriate steps to notify the Permanent Bureau of the Hague
Conference on Private International Law.
Sec. 96.79 Administrative or judicial review of adverse action by the
accrediting entity.
(a) Except to the extent provided by the procedures in Sec. 96.78,
an adverse action by an accrediting entity shall not be subject to
administrative review.
(b) Section 202(c)(3) of the IAA (42 U.S.C. 14922(c)(3)) provides
for judicial review in Federal court of adverse actions by an
accrediting entity, regardless of whether the entity is described in
Sec. 96.5(a) or (b). When any petition brought under section 202(c)(3)
raises as an issue whether the deficiencies necessitating the adverse
action have been corrected, the procedures maintained by the
accrediting entity pursuant to Sec. 96.78 must first be exhausted.
Adverse actions are only those actions listed in Sec. 96.75. There is
no judicial review of an accrediting entity's decision to deny
accreditation or approval, including:
(1) A denial of an initial application;
(2) A denial of an application made after cancellation or refusal
to renew by the accrediting entity; and
(3) A denial of an application made after cancellation or debarment
by the Secretary.
(c) In accordance with section 202(c)(3) of the IAA (42 U.S.C.
14922(c)(3)), an accredited agency or approved person that is the
subject of an adverse action by an accrediting entity may petition the
United States district court in the judicial district in which the
agency is located or the person resides to set aside the adverse action
imposed by the accrediting entity. The United States district court
shall review the adverse action in accordance with 5 U.S.C. 706. When
an accredited agency or approved person petitions a United States
district court to review the adverse action of an accrediting entity,
the accrediting entity will be considered an agency as defined in 5
U.S.C. 701 for the purpose of judicial review of the adverse action.
Sec. 96.80 [Reserved]
Subpart L--Oversight of Accredited Agencies and Approved Persons by
the Secretary
Sec. 96.81 Scope.
The provisions in this subpart establish the procedures governing
adverse action by the Secretary against accredited agencies and
approved persons. Temporary accreditation is governed by the provisions
in subpart N of this part. Unless otherwise provided in subpart N of
this part, the provisions in this subpart do not apply to temporarily
accredited agencies.
Sec. 96.82 The Secretary's response to actions by the accrediting
entity.
(a) There is no administrative review by the Secretary of an
accrediting entity's decision to deny accreditation or approval, nor of
any decision by an accrediting entity to take an adverse action.
(b) When informed by an accrediting entity that an agency has been
accredited or a person has been approved, the Secretary will take
appropriate steps to ensure that relevant information about the
accredited agency or approved person is provided to the Permanent
Bureau of the Hague Conference on Private International Law. When
informed by an accrediting entity that it has taken an adverse action
that impacts an agency's or person's accreditation or approval status,
the Secretary will take appropriate steps to inform the Permanent
Bureau of the Hague Conference on Private International Law.
Sec. 96.83 Suspension or cancellation of accreditation or approval by
the Secretary.
(a) The Secretary must suspend or cancel the accreditation or
approval granted by an accrediting entity when the Secretary finds, in
the Secretary's discretion, that the agency or person is substantially
out of compliance with the standards in subpart F of this part and that
the accrediting entity has failed or refused, after consultation with
the Secretary, to take action.
(b) The Secretary may suspend or cancel the accreditation or
approval granted by an accrediting entity if the Secretary finds that
such action:
(1) Will protect the interests of children;
(2) Will further U.S. foreign policy or national security
interests; or
(3) Will protect the ability of U.S. citizens to adopt children
under the Convention.
(c) If the Secretary suspends or cancels the accreditation or
approval of an agency or person, the Secretary will take appropriate
steps to notify both the accrediting entity and the Permanent Bureau of
the Hague Conference on Private International Law.
Sec. 96.84 Reinstatement of accreditation or approval after
suspension or cancellation by the Secretary.
(a) An agency or person may petition the Secretary for relief from
the Secretary's suspension or cancellation of its accreditation or
approval on the grounds that the deficiencies necessitating the
suspension or cancellation have been corrected. If the Secretary is
satisfied that the deficiencies that led to the suspension or
cancellation have been corrected, the Secretary shall, in the case of a
suspension, terminate the suspension or, in the case of a cancellation,
notify the agency or person that it may reapply for accreditation or
approval to the same accrediting entity that handled its prior
application for accreditation or approval. If that accrediting entity
is no longer providing accreditation or approval services, the agency
or person may reapply to any accrediting entity with jurisdiction over
its application. If the Secretary terminates a suspension or permits an
agency or person to reapply for accreditation or approval, the
Secretary will so notify the appropriate accrediting entity. If the
Secretary terminates a suspension, the Secretary will also take
appropriate steps to notify the Permanent Bureau of the Hague
Conference on Private International Law of the reinstatement.
(b) Nothing in this section shall be construed to prevent the
Secretary from withdrawing a cancellation or
[[Page 8157]]
suspension if the Secretary concludes that the action was based on a
mistake of fact or was otherwise in error. Upon taking such action, the
Secretary will take appropriate steps to notify the accrediting entity
and the Permanent Bureau of the Hague Conference on Private
International Law.
Sec. 96.85 Temporary and permanent debarment by the Secretary.
(a) The Secretary may temporarily or permanently debar an agency
from accreditation or a person from approval on the Secretary's own
initiative, at the request of DHS, or at the request of an accrediting
entity. A debarment of an accredited agency or approved person will
automatically result in the cancellation of accreditation or approval
by the Secretary, and the accrediting entity shall deny any pending
request for renewal of accreditation or approval.
(b) The Secretary may issue a debarment order only if the
Secretary, in the Secretary's discretion, determines that:
(1) There is substantial evidence that the agency or person is out
of compliance with the standards in subpart F of this part; and
(2) There has been a pattern of serious, willful, or grossly
negligent failures to comply, or other aggravating circumstances
indicating that continued accreditation or approval would not be in the
best interests of the children and families concerned. For purposes of
this paragraph:
(i) ``The children and families concerned'' include any children
and any families whose interests have been or may be affected by the
agency's or person's actions;
(ii) A failure to comply with Sec. 96.47 (home study requirements)
shall constitute a ``serious failure to comply'' unless it is shown by
clear and convincing evidence that such noncompliance had neither the
purpose nor the effect of determining the outcome of a decision or
proceeding by a court or other competent authority in the United States
or the child's country of origin; and
(iii) Repeated serious, willful, or grossly negligent failures to
comply with Sec. 96.47 (home study requirements) by an agency or
person after consultation between the Secretary and the accrediting
entity with respect to previous noncompliance by such agency or person
shall constitute a pattern of serious, willful, or grossly negligent
failures to comply.
Sec. 96.86 Length of debarment period and reapplication after
temporary debarment.
(a) In the case of a temporary debarment order, the order will take
effect on the date specified in the order and will specify a date, not
earlier than three years later, on or after which the agency or person
may petition the Secretary for withdrawal of the temporary debarment.
If the Secretary withdraws the temporary debarment, the agency or
person may then reapply for accreditation or approval to the same
accrediting entity that handled its prior application for accreditation
or approval. If that accrediting entity is no longer providing
accreditation or approval services, the agency or person may apply to
any accrediting entity with jurisdiction over its application.
(b) In the case of a permanent debarment order, the order will take
effect on the date specified in the order. The agency or person will
not be permitted to apply again to an accrediting entity for
accreditation or approval, or to the Secretary for termination of the
debarment.
(c) Nothing in this section shall be construed to prevent the
Secretary from withdrawing a debarment if the Secretary concludes that
the action was based on a mistake of fact or was otherwise in error.
Upon taking such action, the Secretary will take appropriate steps to
notify the accrediting entity and the Permanent Bureau of the Hague
Conference on Private International Law.
Sec. 96.87 Responsibilities of the accredited agency, approved
person, and accrediting entity following suspension, cancellation, or
debarment by the Secretary.
If the Secretary suspends or cancels the accreditation or approval
of an agency or person, or debars an agency or person, the agency or
person must cease to provide adoption services in all Convention cases.
In the case of suspension, it must consult with the accrediting entity
about whether to transfer its Convention adoption cases and adoption
records. In the case of cancellation or debarment, it must execute the
plans required by Sec. Sec. 96.33(e) and 96.42(d) under the oversight
of the accrediting entity, and transfer its Convention adoption cases
and adoption records to other accredited agencies, approved persons, or
a State archive, as appropriate. When the agency or person is unable to
transfer such Convention cases or adoption records in accordance with
the plans or as otherwise agreed by the accrediting entity, the
accrediting entity will so advise the Secretary who, with the
assistance of the accrediting entity, will coordinate efforts to
identify other accredited agencies or approved persons to assume
responsibility for the cases, and to transfer the records to other
accredited agencies or approved persons, or to public domestic
authorities, as appropriate.
Sec. 96.88 Review of suspension, cancellation, or debarment by the
Secretary.
(a) Except to the extent provided by the procedures in Sec. 96.84,
an adverse action by the Secretary shall not be subject to
administrative review.
(b) Section 204(d) of the IAA (42 U.S.C. 14924(d)) provides for
judicial review of final actions by the Secretary. When any petition
brought under section 204(d) raises as an issue whether the
deficiencies necessitating a suspension or cancellation of
accreditation or approval have been corrected, procedures maintained by
the Secretary pursuant to Sec. 96.84(a) must first be exhausted. A
suspension or cancellation of accreditation or approval, and a
debarment (whether temporary or permanent) by the Secretary are final
actions subject to judicial review. Other actions by the Secretary are
not final actions and are not subject to judicial review.
(c) In accordance with section 204(d) of the IAA (42 U.S.C.
14924(d)), an agency or person that has been suspended, cancelled, or
temporarily or permanently debarred by the Secretary may petition the
United States District Court for the District of Columbia, or the
United States district court in the judicial district in which the
person resides or the agency is located, pursuant to 5 U.S.C. 706, to
set aside the action.
Sec. 96.89 [Reserved]
Subpart M--Dissemination and Reporting of Information by
Accrediting Entities
Sec. 96.90 Scope.
The provisions in this subpart govern the dissemination and
reporting of information on accredited agencies and approved persons by
accrediting entities. Temporary accreditation is governed by the
provisions of subpart N of this part and, as provided for in Sec.
96.110, reports on temporarily accredited agencies must comply with
this subpart.
Sec. 96.91 Dissemination of information to the public about
accreditation and approval status.
(a) Once the Convention has entered into force for the United
States, the accrediting entity must maintain and make available to the
public on a quarterly basis the following information:
[[Page 8158]]
(1) The name, address, and contact information for each agency and
person it has accredited or approved;
(2) The names of agencies and persons to which it has denied
accreditation or approval that have not subsequently been accredited or
approved;
(3) The names of agencies and persons that have been subject to
withdrawal of temporary accreditation, suspension, cancellation,
refusal to renew accreditation or approval, or debarment by the
accrediting entity or the Secretary; and
(4) Other information specifically authorized in writing by the
accredited agency or approved person to be disclosed to the public.
(b) Once the Convention has entered into force for the United
States, each accrediting entity must make the following information
available to individual members of the public upon specific request:
(1) Confirmation of whether or not a specific agency or person has
a pending application for accreditation or approval, and, if so, the
date of the application and whether it is under active consideration or
whether a decision on the application has been deferred; and
(2) If an agency or person has been subject to a withdrawal of
temporary accreditation, suspension, cancellation, refusal to renew
accreditation or approval, or debarment, a brief statement of the
reasons for the action.
Sec. 96.92 Dissemination of information to the public about
complaints against accredited agencies and approved persons.
Once the Convention has entered into force for the United States,
each accrediting entity must maintain a written record documenting each
complaint received and the steps taken in response to it. This
information may be disclosed to the public as follows:
(a) The accrediting entity must verify, upon inquiry from a member
of the public, whether there have been any substantiated complaints
against an accredited agency or approved person, and if so, provide
information about the status and nature of any such complaints.
(b) The accrediting entity must have procedures for disclosing
information about complaints that are substantiated.
Sec. 96.93 Reports to the Secretary about accredited agencies and
approved persons and their activities.
(a) The accrediting entity must make annual reports to the
Secretary on the information it collects from accredited agencies and
approved persons pursuant to Sec. 96.43. The accrediting entity must
make semi-annual reports to the Secretary that summarize for the
preceding six-month period the following information:
(1) The accreditation and approval status of applicants, accredited
agencies, and approved persons;
(2) Any instances where it has denied accreditation or approval;
(3) Any adverse actions taken against an accredited agency or
approved person and any withdrawals of temporary accreditation;
(4) All substantiated complaints against accredited agencies and
approved persons and the impact of such complaints on their
accreditation or approval status;
(5) The number, nature, and outcome of complaint investigations
carried out by the accrediting entity as well as the shortest, longest,
average, and median length of time expended to complete complaint
investigations; and
(6) Any discernible patterns in complaints received about specific
agencies or persons, as well as any discernible patterns of complaints
in the aggregate.
(b) The accrediting entity must report to the Secretary within
thirty days of the time it learns that an accredited agency or approved
person:
(1) Has ceased to provide adoption services; or
(2) Has transferred its Convention cases and adoption records.
(c) In addition to the reporting requirements contained in Sec.
96.72, an accrediting entity must immediately notify the Secretary in
writing:
(1) When it accredits an agency or approves a person;
(2) When it renews the accreditation or approval of an agency or
person; or
(3) When it takes an adverse action against an accredited agency or
approved person that impacts its accreditation or approval status or
withdraws an agency's temporary accreditation.
Sec. 96.94 [Reserved]
Subpart N--Procedures and Standards Relating to Temporary
Accreditation
Sec. 96.95 Scope.
(a) The provisions in this subpart govern only temporary
accreditation. The provisions in subpart F of this part cover full
accreditation of agencies and approval of persons.
(b) Agencies that meet the eligibility requirements established in
this subpart may apply for temporary accreditation that will run for a
one-or two-year period following the Convention's entry into force for
the United States. Persons may not be temporarily approved. Temporary
accreditation is only available to agencies that apply by the
transitional application deadline and who complete the temporary
accreditation process by the deadline for initial accreditation or
approval in accordance with Sec. 96.19.
Sec. 96.96 Eligibility requirements for temporary accreditation.
(a) An accrediting entity may not temporarily accredit an agency
unless the agency demonstrates to the satisfaction of the accrediting
entity that:
(1) It has provided adoption services in fewer than 100
intercountry adoption cases in the calendar year preceding the year in
which the transitional application deadline falls. For purposes of this
subpart, the number of cases includes all intercountry adoption cases
that were handled by, or under the responsibility of, the agency,
regardless of whether they involved countries party to the Convention;
(2) It qualifies for nonprofit tax treatment under section
501(c)(3) of the Internal Revenue Code of 1986, as amended, or for
nonprofit status under the law of any State;
(3) It is properly licensed under State law to provide adoption
services in at least one State. It is, and for the last three years
prior to the transitional application deadline has been, providing
intercountry adoption services;
(4) It has the capacity to maintain and provide to the accrediting
entity and the Secretary, within thirty days of request, all of the
information relevant to the Secretary's reporting requirements under
section 104 of the IAA (42 U.S.C. 14914); and
(5) It has not been involved in any improper conduct related to the
provision of intercountry adoption or other services, as evidenced in
part by the following:
(i) The agency has maintained its State license without suspension
or cancellation for misconduct during the entire period in which it has
provided intercountry adoption services;
(ii) The agency has not been subject to a finding of fault or
liability in any administrative or judicial action in the three years
preceding the transitional application deadline; and
(iii) The agency has not been the subject of any criminal findings
of fraud or financial misconduct in the three years preceding the
transitional application deadline.
(b) An accrediting entity may not temporarily accredit an agency
unless the agency also demonstrates to the
[[Page 8159]]
satisfaction of the accrediting entity that it has a comprehensive plan
for applying for and achieving full accreditation before the agency's
temporary accreditation expires, and is taking steps to execute that
plan.
Sec. 96.97 Application procedures for temporary accreditation.
(a) An agency seeking temporary accreditation must submit an
application to an accrediting entity with jurisdiction over its
application, with the required fee(s), by the transitional application
deadline established pursuant to Sec. 96.19 of this part. Applications
for temporary accreditation that are filed after the temporary
application deadline will not be considered.
(b) An agency may not seek temporary accreditation and full
accreditation at the same time. The agency's application must clearly
state whether it is seeking temporary accreditation or full
accreditation. An eligible agency's option of applying for temporary
accreditation will be deemed to have been waived if the agency also
submits a separate application for full accreditation prior to the
transitional application deadline. The agency may apply to only one
accrediting entity at a time.
(c) The accrediting entity must establish and follow uniform
application procedures and must make information about these procedures
available to agencies that are considering whether to apply for
temporary accreditation. The accrediting entity must evaluate the
applicant for temporary accreditation in a timely fashion. The
accrediting entity must use its best efforts to provide a reasonable
opportunity for an agency that applies for temporary accreditation by
the transitional application deadline to complete the temporary
accreditation process by the deadline for initial accreditation or
approval. If an agency seeks temporary accreditation under this
subpart, it will be included on the initial list deposited by the
Secretary with the Permanent Bureau of the Hague Conference on Private
International Law only if it is granted temporary accreditation by the
deadline for initial accreditation or approval established pursuant to
Sec. 96.19(a).
Sec. 96.98 Length of temporary accreditation period.
(a) One-year temporary accreditation. An agency that has provided
adoption services in 50-99 intercountry adoptions in the calendar year
preceding the year in which the transitional application date falls may
apply for a one-year period of temporary accreditation. The one-year
period will commence on the date that the Convention enters into force
for the United States.
(b) Two-year temporary accreditation. An agency that has provided
adoption services in fewer than 50 intercountry adoptions in the
calendar year preceding the year in which the transitional application
date falls may apply for a two-year period of temporary accreditation.
The two-year period will commence on the date that the Convention
enters into force for the United States.
Sec. 96.99 Converting an application for temporary accreditation to
an application for full accreditation.
(a) The accrediting entity may, in its discretion, permit an agency
that has applied for temporary accreditation to convert its application
to an application for full accreditation, subject to submission of any
additional required documentation, information, and fee(s). The
accrediting entity may grant a request for conversion if the
accrediting entity has determined that the applicant is not in fact
eligible for temporary accreditation based on the number of adoption
cases it has handled; if the agency has concluded that it can complete
the full accreditation process sooner than expected; or for any other
reason that the accrediting entity deems appropriate.
(b) If an application is converted after the transitional
application deadline, it will be treated as an application filed after
the transitional application deadline, and the agency may not
necessarily be provided an opportunity to complete the accreditation
process in time to be included on the initial list of accredited
agencies and approved persons that the Secretary will deposit with the
Permanent Bureau of the Hague Conference on Private International Law.
Sec. 96.100 Procedures for evaluating applicants for temporary
accreditation.
(a) To evaluate an agency for temporary accreditation, the
accrediting entity must:
(1) Review the agency's written application and supporting
documentation; and
(2) Verify the information provided by the agency, as appropriate.
The accrediting entity may also request additional documentation and
information from the agency in support of the application as it deems
necessary.
(b) The accrediting entity may also decide, in its discretion, that
it must conduct a site visit to determine whether to approve the
application for temporary accreditation. The site visit may include
interviews with birth parents, adoptive parent(s), prospective adoptive
parent(s), and adult adoptee(s) served by the agency, interviews with
the agency's employees, and interviews with other individual(s)
knowledgeable about its provision of adoption services. It may also
include a review of on-site documents. The accrediting entity must, to
the extent possible, advise the agency in advance of documents it
wishes to review during the site visit. The provisions of Sec. Sec.
96.25 and 96.26 will govern requests for and use of information.
(c) Before deciding whether to grant temporary accreditation to the
agency, the accrediting entity may, in its discretion, advise the
agency of any deficiencies that may hinder or prevent its temporary
accreditation and defer a decision to allow the agency to correct the
deficiencies.
(d) The accrediting entity may only use the criteria contained in
Sec. 96.96 when determining whether an agency is eligible for
temporary accreditation.
(e) The eligibility criteria contained in Sec. 96.96 and the
standards contained in Sec. 96.104 do not eliminate the need for an
agency to comply fully with the laws of the jurisdictions in which it
operates. An agency must provide adoption services in Convention cases
consistent with the laws of any State in which it operates and with the
Convention and the IAA.
Sec. 96.101 Notification of temporary accreditation decisions.
(a) The accrediting entity must notify agencies of its temporary
accreditation decisions on the uniform notification date to be
established by the Secretary pursuant to Sec. 96.58(a). On that date,
the accrediting entity must inform each applicant and the Secretary in
writing whether the agency has been granted temporary accreditation.
The accrediting entity may not provide any information about its
temporary accreditation decisions to any agency or to the public until
the uniform notification date. If the Secretary requests information on
the interim or final status of an agency prior to the uniform
notification date, the accrediting entity must provide such information
to the Secretary.
(b) Notwithstanding paragraph (a) of this section, the accrediting
entity may, in its discretion, communicate with agencies about the
status of their pending applications for temporary accreditation for
the sole purpose of affording them an opportunity to correct
deficiencies that may hinder their
[[Page 8160]]
temporary accreditation. When informed by an accrediting entity that an
agency has been temporarily accredited, the Secretary will take
appropriate steps to ensure that relevant information about a
temporarily accredited agency is provided to the Permanent Bureau of
the Hague Conference on Private International Law.
Sec. 96.102 Review of temporary accreditation decisions.
There is no administrative or judicial review of an accrediting
entity's decision to deny temporary accreditation.
Sec. 96.103 Oversight by accrediting entities.
(a) The accrediting entity must oversee an agency that it has
temporarily accredited by monitoring whether the agency is in
substantial compliance with the standards contained in Sec. 96.104 and
through the process of assessing the agency's application for full
accreditation when it is filed. The accrediting entity must also
investigate any complaints or other information that becomes available
to it about an agency it has temporarily accredited. Complaints against
a temporarily accredited agency must be handled in accordance with
subpart J of this part. For purposes of subpart J of this part, the
temporarily accredited agency will be treated as if it were a fully
accredited agency, except that:
(1) The relevant standards will be those contained in Sec. 96.104
rather than those contained in subpart F of this part; and
(2) Enforcement action against the agency will be taken in
accordance with Sec. 96.105 and Sec. 96.107 rather than in accordance
with subpart K of this part.
(b) The accrediting entity may determine, in its discretion, that
it must conduct a site visit to investigate a complaint or other
information or otherwise monitor the agency.
(c) The accrediting entity may consider any information that
becomes available to it about the compliance of the agency. The
provisions of Sec. Sec. 96.25 and 96.26 govern requests for and use of
information.
Sec. 96.104 Performance standards for temporary accreditation.
The accrediting entity may not maintain an agency's temporary
accreditation unless the agency demonstrates to the satisfaction of the
accrediting entity that it is in substantial compliance with the
following standards:
(a) The agency follows applicable licensing and regulatory
requirements in all jurisdictions in which it provides adoption
services;
(b) It does not engage in any improper conduct related to the
provision of intercountry adoption services, as evidenced in part by
the following:
(1) It maintains its State license without suspension or
cancellation for misconduct;
(2) It is not subject to a finding of fault or liability in any
administrative or judicial action; and
(3) It is not the subject of any criminal findings of fraud or
financial misconduct;
(c) It adheres to the standards in Sec. 96.36 prohibiting child
buying;
(d) It adheres to the standards for responding to complaints in
accordance with Sec. 96.41;
(e) It adheres to the standards on adoption records and information
relating to Convention cases in accordance with Sec. 96.42;
(f) It adheres to the standards on providing data to the
accrediting entity in accordance with Sec. 96.43;
(g) When acting as the primary provider in a Convention adoption it
complies with the standards in Sec. Sec. 96.44 and 96.45 when using
supervised providers in the United States and it complies with the
standards in Sec. Sec. 96.44 and 96.46 when using supervised providers
or, to the extent permitted by Sec. 96.14(c), other foreign providers
in a Convention country;
(h) When performing or approving a home study in an incoming
Convention case, it complies with the standards in Sec. 96.47;
(i) When performing or approving a child background study or
obtaining consents in an outgoing Convention case, it complies with the
standards in Sec. 96.53;
(j) When performing Convention functions in incoming or outgoing
cases, it complies with the standards in Sec. 96.52 or Sec. 96.55;
(k) It has a plan to transfer its Convention cases and adoption
records if it ceases to provide or is no longer permitted to provide
adoption services in Convention cases. The plan includes provisions for
an organized closure and reimbursement to clients of funds paid for
services not yet rendered;
(l) It is making continual progress toward completing the process
of obtaining full accreditation by the time its temporary accreditation
expires; and
(m) It takes all necessary and appropriate measures to perform any
tasks in a Convention adoption case that the Secretary identifies are
required to comply with the Convention, the IAA, or any regulations
implementing the IAA.
Sec. 96.105 Adverse action against a temporarily accredited agency by
an accrediting entity.
(a) If the accrediting entity determines that an agency it has
temporarily accredited is substantially out of compliance with the
standards in Sec. 96.104, it may, in its discretion, withdraw the
agency's temporary accreditation.
(b) The accrediting entity must notify the agency in writing of any
decision to withdraw the agency's temporary accreditation. The written
notice must identify the deficiencies necessitating the withdrawal.
Before withdrawing the agency's temporary accreditation, the
accrediting entity may, in its discretion, advise a temporarily
accredited agency in writing of any deficiencies in its performance
that may warrant withdrawal and provide it with an opportunity to
demonstrate that withdrawal would be unwarranted before withdrawal
occurs. If the accrediting entity withdraws the agency's temporary
accreditation without such prior notice, it must provide a similar
opportunity to demonstrate that the withdrawal was unwarranted after
the withdrawal occurs, and may reinstate the agency's temporary
accreditation based on the information provided.
(c) The provisions of Sec. Sec. 96.25 and 96.26 govern requests
for and use of information.
(d) The accrediting entity must notify the Secretary, in accordance
with procedures established in its agreement with the Secretary, when
it withdraws or reinstates an agency's temporary accreditation. The
accrediting entity must also notify the relevant State licensing
authority as provided in the agreement.
Sec. 96.106 Review of the withdrawal of temporary accreditation by an
accrediting entity.
(a) A decision by an accrediting entity to withdraw an agency's
temporary accreditation shall not be subject to administrative review.
(b) Withdrawal of temporary accreditation is analogous to
cancellation of accreditation and is therefore an adverse action
pursuant to Sec. 96.75. In accordance with section 202(c)(3) of the
IAA (42 U.S.C. 14922(c)(3)), a temporarily accredited agency that is
the subject of an adverse action by an accrediting entity may petition
the United States district court in the judicial district in which the
agency is located to set aside the adverse action imposed by the
accrediting entity. The United States district court shall review the
adverse
[[Page 8161]]
action in accordance with 5 U.S.C. 706. When a temporarily accredited
agency petitions a United States district court to review the adverse
action of an accrediting entity, the accrediting entity will be
considered an agency as defined in 5 U.S.C. 701 for the purpose of
judicial review of the adverse action.
Sec. 96.107 Adverse action against a temporarily accredited agency by
the Secretary.
(a) The Secretary may, in the Secretary's discretion, withdraw an
agency's temporary accreditation if the Secretary finds that the agency
is substantially out of compliance with the standards in Sec. 96.104
and the accrediting entity has failed or refused, after consultation
with the Secretary, to take appropriate enforcement action.
(b) The Secretary may also withdraw an agency's temporary
accreditation if the Secretary finds that such action;
(1) Will protect the interests of children;
(2) Will further U.S. foreign policy or national security
interests; or
(3) Will protect the ability of U.S. citizens to adopt children
under the Convention.
(c) If the Secretary withdraws an agency's temporary accreditation,
the Secretary will notify the accrediting entity.
Sec. 96.108 Review of the withdrawal of temporary accreditation by
the Secretary.
(a) There is no administrative review of a decision by the
Secretary to withdraw an agency's temporary accreditation.
(b) Section 204(d) of the IAA (42 U.S.C. 14924(d)) provides for
judicial review of final actions by the Secretary. Withdrawal of
temporary accreditation, which is analogous to cancellation of
accreditation, is a final action subject to judicial review.
(c) An agency whose temporary accreditation has been withdrawn by
the Secretary may petition the United States District Court for the
District of Columbia, or the United States district court in the
judicial district in which the agency is located, to set aside the
action pursuant to section 204(d) of the IAA (42 U.S.C. 14924(d)).
Sec. 96.109 Effect of the withdrawal of temporary accreditation by
the accrediting entity or the Secretary.
(a) If an agency's temporary accreditation is withdrawn, it must
cease to provide adoption services in all Convention cases and must
execute the plan required by Sec. 96.104(k) under the oversight of the
accrediting entity, and transfer its Convention adoption cases and
adoption records to an accredited agency, approved person, or a State
archive, as appropriate.
(b) Where the agency is unable to transfer such Convention cases or
adoption records in accordance with the plan or as otherwise agreed by
the accrediting entity, the accrediting entity will so advise the
Secretary who, with the assistance of the accrediting entity, will
coordinate efforts to identify other accredited agencies or approved
persons to assume responsibility for the cases, and to transfer the
records to other accredited agencies or approved persons, or to public
domestic authorities, as appropriate.
(c) When an agency's temporary accreditation is withdrawn or
reinstated, the Secretary will, where appropriate, take steps to inform
the Permanent Bureau of the Hague Conference on Private International
Law.
(d) An agency whose temporary accreditation has been withdrawn may
continue to seek full accreditation or may withdraw its pending
application and apply for full accreditation at a later time. Its
application for full accreditation must be made to the same accrediting
entity that granted its application for temporary accreditation. If
that entity is no longer providing accreditation services, it may apply
to any accrediting entity with jurisdiction over its application.
(e) If an agency continues to pursue its application for full
accreditation or subsequently applies for full accreditation, the
accrediting entity may take the circumstances of the withdrawal of its
temporary accreditation into account when evaluating the agency for
full accreditation.
Sec. 96.110 Dissemination and reporting of information about
temporarily accredited agencies.
The accrediting entity must disseminate and report information
about agencies it has temporarily accredited as if they were fully
accredited agencies, in accordance with subpart M of this part.
Sec. 96.111 Fees charged for temporary accreditation.
(a) Any fees charged by an accrediting entity for temporary
accreditation will include a non-refundable fee for temporary
accreditation set forth in a schedule of fees approved by the Secretary
as provided in Sec. 96.8(a). Such fees may not exceed the costs of
temporary accreditation and must include the costs of all activities
associated with the temporary accreditation cycle (including, but not
limited to, costs for completing the temporary accreditation process,
complaint review and investigation, routine oversight and enforcement,
and other data collection and reporting activities). The temporary
accreditation fee may not include the costs of site visit(s). The
schedule of fees may provide, however, that, in the event that a site
visit is required to determine whether to approve an application for
temporary accreditation, to investigate a complaint or other
information, or otherwise to monitor the agency, the accrediting entity
may assess additional fees for actual costs incurred for travel and
maintenance of evaluators and for any additional administrative costs
to the accrediting entity. In such a case, the accrediting entity may
estimate the additional fees and may require that the estimated amount
be paid in advance, subject to a refund of any overcharge. Temporary
accreditation may be denied or withdrawn if the estimated fees are not
paid.
(b) An accrediting entity must make its schedule of fees available
to the public, including prospective applicants for temporary
accreditation, upon request. At the time of application, the
accrediting entity must specify the fees to be charged in a contract
between the parties and must provide notice to the applicant that no
portion of the fee will be refunded if the applicant fails to become
temporarily accredited.
Dated: January 13, 2006.
Maura Harty,
Assistant Secretary for Consular Affairs, Department of State.
[FR Doc. 06-1067 Filed 2-14-06; 8:45 am]
BILLING CODE 4710-06-P