Clarification of Answer by
pafalafa-ga
on
27 Mar 2004 14:04 PST
Hmmm...I wonder why. Try this one instead:
http://frwebgate4.access.gpo.gov/cgi-bin/waisgate.cgi?WAISdocID=4248516935+0+0+0&WAISaction=retrieve
And if that doesn't do the trick, here's the text of the entire
proposed rule, for your reading pleasure:
[Federal Register: September 15, 2003 (Volume 68, Number 178)]
[Proposed Rules]
[Page 54063-54119]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr15se03-29]
[[Page 54063]]
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Part II
Department of State
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22 CFR Parts 96 and 98
Hague Convention on Intercountry Adoption; Intercountry Adoption Act of
2000; Accreditation of Agencies; Approval of Persons; Preservation of
Convention Records; Proposed Rules
[[Page 54064]]
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DEPARTMENT OF STATE
22 CFR Part 96
[Public Notice 4466]
RIN 1400-AA-88
Hague Convention on Intercountry Adoption; Intercountry Adoption
Act of 2000; Accreditation of Agencies; Approval of Persons;
Preservation of Convention Records
AGENCY: Department of State.
ACTION: Proposed rule.
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SUMMARY: The Department of State (the Department) is proposing
regulations to implement 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). The
Convention and the IAA require that adoption service providers be
accredited or approved to provide adoption services for intercountry
adoptions involving two countries party to the Convention. These
proposed rules establish procedures that the Department will use to
designate accrediting entities for the purpose of evaluating agencies
and persons and determining if they may be granted accreditation or
approval. These proposed rules also contain procedures and standards to
accredit agencies and approve persons to provide adoption services in
Convention cases. These rules will ensure that, when the Convention
enters into force for the United States, there will be accredited
agencies and approved persons to provide adoption services for
Convention adoptions.
DATES: Comments must reach the Department on or before November 14,
2003.
ADDRESSES: Commenters may send hard copy submissions or comments in
electronic format. Commenters sending only hard copies must send an
original and two copies referencing docket number State/AR-01/96 to:
U.S. Department of State, CA/OCS/PRI, Adoption Regulations Docket Room,
SA-29, 2201 C Street, NW., Washington, DC 20520. Hard copy comments may
also be sent by overnight courier services to: U.S. Department of
State, CA/OCS/PRI, Adoption Regulations Docket Room, 2201 C Street,
NW., Washington, DC 20520. Do not personally hand deliver comments to
the Department of State.
Comments referencing the docket number State/AR-01/96 may be
submitted electronically to adoptionregs@state.gov. Two hard copies of
the comments submitted electronically must be mailed under separate
cover as well. The electronic comments or the hard copy comments must
be received by the date noted above in the date section of this
proposed rule. Comments must be made in the text of the message or
submitted as a Word file avoiding the use of any form of encryption or
use of special characters. If you submit comments by hard copy rather
than electronically, include a disk with the submission if possible.
Hard copy submissions without an accompanying disk file, however, will
be accepted.
FOR FURTHER INFORMATION CONTACT: Edward Betancourt or Anna Mary Coburn
at 202-647-2826 or Jessica Rosenbaum at 202-312-9717. 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: As noted, comments may be submitted
electronically to: adoptionregs@state.gov. Public comments and
supporting materials are available for viewing at the Adoption
Regulations Docket Room. To review docket materials, members of the
public must make an appointment by calling Delilia Gibson-Martin at
202-647-2826. The public may copy a maximum of 100 pages at no charge.
Additional copies cost $0.25 a page.
The Department of State will keep the official record for this
action in paper form. Accordingly, the official administrative file is
the paper file maintained at the Adoption Regulations Docket Room,
United States Department of State. The Department of State's responses
to public comments, whether the comments are received in written or
electronic format, will be published in the Federal Register, and no
immediate responses will be provided. General information about
intercountry adoptions is available on the Department of State's Web
site at http://travel.state.gov/adopt.html and the Department of
Homeland Security Web site at http://www.immigration.gov. Background
information about the development of these regulations is provided at
http://www.hagueregs.org.
Preamble Table of Contents
I. Legal Authority
II. Introduction
III. The 1993 Hague Convention on Protection of Children and Co-
operation in Respect of Intercountry Adoption
A. Development of the Hague Convention on Intercountry Adoption
B. U.S. Ratification of the Convention
C. Use of Private, Accredited Adoption Service Providers
D. Ability of U.S. Accredited Agencies and Approved Persons to
Operate in Other Convention Countries
E. Timing of Implementation
IV. The Intercountry Adoption Act of 2000 (IAA)
A. Passage of the IAA
B. Overview of Substantive Provisions
C. Distinction between ``Agency'' and ``Person''
D. Federalism Issues
E. Economic Impact/Effect on Small Entities
F. The IAA Exemptions to the Paperwork Reduction Act
V. The Proposed Implementing Regulations on Accreditation and
Approval
A. Public Input on the Proposed Regulations
B. The Department's Preparation of the Proposed Regulations
C. Overview of the Proposed Regulations
1. Subpart A--General Provisions
2. Subpart B--Selection, Designation, and Duties of Accrediting
Entities
3. Subpart C--Accreditation and Approval Requirements for the
Provision of Adoption Services
4. Subpart D--Application Procedures for Accreditation and
Approval
5. Subpart E--Evaluation of Applicants for Accreditation and
Approval
6. Subpart F--Standards for Convention Accreditation and
Approval
7. Subpart G--Decisions on Applications for Accreditation and
Approval
8. Subpart H--Renewal of Accreditation and Approval
9. Subpart I--Routine Oversight by Accrediting Entities
10. Subpart J--Oversight through Review of Complaints
11. Subpart K--Adverse Action by Accrediting Entities
12. Subpart L--Oversight of Accredited Agencies and Approved
Persons by the Secretary
13. Subpart M--Dissemination and Reporting of Information by
Accrediting
Entities
14. Subpart N--Procedures and Standards Relating to Temporary
Accreditation
VI. 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. The Treasury and General Government Appropriations Act of
1999--Assessment of Federal Regulations and Policies on Families
I. Legal Authority
The Hague Convention on Protection of Children and Co-operation in
Respect of Intercountry Adoption, May 29, 1993,
[[Page 54065]]
S. Treaty Doc. 105-51 (1998); 1870 U.N.T.S. 167 (Reg. No. 31922
(1993)), 32 I.L.M. 1134 (1993); Intercountry Adoption Act of 2000, 42
U.S.C. 14901-14954.
II. Introduction
Regulations to implement the 1993 Hague Convention on Protection of
Children and Co-operation in Respect of Intercountry Adoption (the
Convention) and the recently enacted Intercountry Adoption Act of 2000
(the IAA), Public Law 106-279, 42 U.S.C. 14901-14954 (herein referred
to as the IAA or Public Law 106-279), are being proposed for the first
time. These regulations will be added as part 96 of title 22 of the
Code of Federal Regulations (CFR). The purpose of these regulations is
to enable the United States to become a party to the Convention. The
Convention governs intercountry adoptions between countries that are
parties to the Convention (``Convention adoptions''). The IAA is the
U.S. implementing legislation for the Convention. Once the Convention
enters into force for the United States, all Convention adoptions must
comply with the Convention, the IAA, and these regulations.
These regulations address the accreditation of agencies (non-profit
adoption service providers) and the approval of persons (for-profit and
individual adoption service providers) to provide adoption services in
Convention cases. The regulations also set forth the process for
designating one or more accrediting entities to perform the
accreditation and approval functions, the procedures for conferring and
renewing accreditation and approval, the procedures for monitoring
compliance with accreditation or approval standards, the rules for
taking adverse action against accredited agencies and approved persons,
and the standards for accreditation and approval. The regulations also
address which agencies and persons are required to adhere to these
standards, and what adoption-related activities are exempted from the
accreditation and approval requirements. Finally, the regulations set
forth the procedures and requirements for temporary accreditation under
section 203(c) of the IAA. (Pub. L. 106-279, section 203(c)).
These regulations do not address how the Department and the
Department of Homeland Security (herein referred to as DHS until the
Department of Homeland Security identifies which DHS bureau will assume
the functions delegated to the Immigration and Naturalization Service
(INS) under the IAA will implement the provisions of the Convention and
the IAA that govern procedures for completing and recognizing
Convention adoptions. The regulations on intercountry adoption
procedures for Convention adoptions will become part 97 of title 22 of
the CFR and will be published at a later date. Also published in
today's Federal Register is the proposed rule for part 98 of title 22
of the CFR. Part 97 is reserved, and part 98 provides the proposed rule
on the Department and DHS's retention of Convention records.
The IAA designates the U.S. Department of State as the Central
Authority for the United States. The Secretary of State is designated
as the head of the Central Authority. For purposes of this Preamble,
the shorthand term ``the Department'' is generally used rather than the
Secretary of State or the Department of State. Certain Central
Authority functions are delegable outside of the Department and the
Federal government and will effectively be delegated either to the
accrediting entities or to the accredited agencies, temporarily
accredited agencies, or approved persons, as appropriate, pursuant to
these regulations. The IAA specifically provides that the Department
may ``authorize public or private entities to perform appropriate
central authority functions for which the [Department] is responsible,
pursuant to regulations or under agreements published in the Federal
Register.'' (Pub. L. 106-279, section 102(f)(1)).
As Central Authority, the Department will be responsible for:
Acting as liaison with other Central Authorities; assisting U.S.
citizens seeking to adopt children from abroad and to residents of
other Convention countries seeking to adopt children from the United
States; exchanging information; overseeing the accreditation and
approval of adoption service providers; monitoring and facilitating
individual cases involving U.S. citizens; and, jointly with the
Attorney General (presumably now the Secretary of Homeland Security),
establishing a Case Registry with information on intercountry adoptions
with Convention and non-Convention countries.
This Preamble is intended to facilitate understanding of the
background and purpose underlying the regulations. The Preamble should
not be considered a substitute for the text of the regulations
themselves. The Preamble is designed to provide an overview of the
proposed regulations; however, it will not become part of the final
regulations when they are published in the CFR. Accrediting entities,
as well as accredited agencies and approved persons, and those working
under the supervision and responsibility of accredited agencies and
approved persons, will be held responsible for compliance with the
regulations that apply to them.
III. The 1993 Hague Convention on Protection of Children and
Cooperation in Respect of Intercountry Adoption
A. Development of the Hague Convention on Intercountry Adoption
A copy of the Convention is available on the Hague Conference Web
site at http://www.hcch.net. The Convention is a multilateral treaty
developed under the auspices of the intergovernmental organization
known as the Hague Conference on Private International Law (Hague
Conference). The Convention provides a framework of safeguards for
protecting children and families involved in intercountry adoption,
while still being acceptable to, and capable of being implemented by,
diverse sending and receiving countries. This Convention is one of the
most widely embraced and broadly accepted conventions developed by the
Hague Conference.
The Convention is the first international instrument to recognize
that intercountry adoption could ``offer the advantage of a permanent
home to a child for whom a suitable family cannot be found in his or
her state of origin.'' (S. Treaty Doc. 105-51, at 1). Some countries
involved in the multilateral negotiations on the Convention sought to
prohibit intercountry adoptions even for those children eligible for
adoption for whom a permanent family placement in the child's country
of origin could not be arranged. On the other hand, proponents of
intercountry adoption at the Hague Conference believed that the best
interests of a child would not be served by arbitrarily prohibiting a
child in need of a permanent family placement from being matched with
an adoptive family simply because the family resided in another
country. The Convention reflects a consensus that an intercountry
adoption may well be in an individual child's best interests.
If a country becomes a party to the Convention, intercountry
adoptions--incoming and outgoing--with other party countries must
comply with the requirements of the Convention. The objectives of the
Convention are: First, to establish safeguards to ensure that
intercountry adoptions take place in the best interests of the child
and with respect for the child's fundamental rights as recognized in
international law; second, to establish a system of cooperation among
contracting states to ensure that those safeguards are
[[Page 54066]]
respected and thereby prevent the abduction, sale of, or traffic in
children; and third, to secure the recognition in contracting states of
adoptions made in accordance with the Convention. The Convention also
requires all parties to act expeditiously in the process of adoption.
The Convention's norms and principles apply whether the party country
is acting as a sending country or as a receiving country.
To accomplish its goals, the Convention makes a number of
significant modifications to current intercountry adoption practice,
including three particularly important changes. First, the Convention
mandates close coordination between the governments of contracting
countries through a Central Authority in each Convention country. In
its role as a coordinating body, the Central Authority is responsible
for sharing information about the laws of its own and other Convention
countries and monitoring individual cases. Second, the Convention
requires that each country involved make certain determinations before
an adoption may proceed. The sending country must determine in advance
that the child is eligible to be adopted, that it is in the child's
best interests to be adopted internationally, that the consent of birth
parents, institutions, or authorities that are necessary under the law
of the country of origin have been obtained freely and in writing, and
that the consent of the child, if required, has been obtained. The
sending country must also prepare a child background study that
includes the medical history of the child as well as other background
information.
Concurrently, the receiving country must determine in advance that
the prospective adoptive parent(s) are eligible and suited to adopt,
that they have received counseling, and that the child will be eligible
to enter and reside permanently in the receiving country. The receiving
country must also prepare a home study on the prospective adoptive
parent(s). These advance determinations and studies are designed to
ensure that the child is protected and that there are no obstacles to
completing the adoption.
B. U.S. Ratification of the Convention
The United States signed the Convention on March 31, 1994, with the
intent to ratify it in due course. On September 20, 2000, the Senate
gave its advice and consent to ratification. The Senate's advice and
consent to the Convention were subject to the following declaration:
``The President shall not deposit the instrument of ratification for
the Convention until such time as the Federal law implementing the
Convention is enacted and the United States is able to carry out all
the obligations of the Convention, as required by its implementing
legislation.'' (146 Cong. Rec. S8866 (daily ed. Sept. 20, 2000)). Thus,
the Convention will not actually come into force and govern
intercountry adoptions between the United States and other party
countries until the United States is able to carry out its obligations.
These regulations are essential in enabling the United States to meet
its Convention obligations.
The United States strongly supports the Convention's purposes and
principles and believes that U.S. ratification will further the
critical goal of protecting children and families involved in
intercountry adoptions. The United States is a major participant in
intercountry adoption, primarily as a receiving country but also as a
sending country. Many U.S. citizens adopt children eligible for
adoption from another country, and in those cases the United States is
acting as a receiving country. From October 1999 to September 2002, a
total of 59,079 children were issued orphan visas to immigrate to the
United States in connection with their adoption. As a sending country,
the United States also places children abroad for adoption. There are
no reliable statistics at the Federal level on the number of U.S.
children adopted annually by persons resident in a foreign country.
Advocates for ratification of the Convention argued that many
Convention countries would eventually refuse to permit intercountry
adoptions by U.S. citizens unless the United States ratified the
Convention (Hearing on the Convention and IAA Before the Senate Comm.
on Foreign Relations, 106th Cong. (October 5, 1999)). The Department in
fact has seen such developments. The Department wishes to complete
preparations for implementation as rapidly as possible to ensure that
U.S. families and the children they adopt have the advantage of the
Convention's protections and that U.S. prospective adoptive parent(s)
will be able to adopt children from Convention countries, particularly
if those countries prohibit adoptions vis-[agrave]-vis countries that
are not party to the Convention. The Department also wants to ensure
that U.S. children who are adopted by parents from other countries are
protected under the Convention and the IAA as well.
C. Use of Private, Accredited Adoption Service Providers
One particularly controversial issue that arose during Convention
negotiations was whether private adoption service providers would be
permitted to perform Central Authority functions. Some countries wanted
all parties to rely exclusively on public or governmental authorities
to perform Central Authority functions. Other countries, including the
United States, advocated for parties to have the option of using
private adoption service providers to complete Convention tasks. In the
United States, private, non-profit adoption service providers currently
handle the majority of U.S. intercountry adoption cases. In its final
form, the Convention permits party countries to choose to use private,
Convention-accredited adoption service providers to perform Central
Authority tasks. Specifically, Article 22 permits private, non-profit
adoption service providers instead of Central Authorities to complete
certain Central Authority functions required by the Convention. As
discussed below, however, private, for-profit providers may perform
such functions only as authorized under Article 22(2), which imposes
limitations that do not apply to private, non-profit providers.
By including a provision allowing non-governmental bodies to
provide adoption services, the Convention recognized the critical role
private bodies play--and historically have played--in the intercountry
adoption process. In the United States, for example, the number of
intercountry adoptions from 1989 to 2001 totaled 147,021, and private,
non-profit adoption service providers handled most of those adoptions.
Recognizing, also, the role of private, for-profit adoption service
providers in the United States, the Senate gave its advice and consent
to the ratification of the Convention subject to a declaration,
pursuant to Article 22(2) of the Convention, that U.S. Central
Authority functions under Articles 15 to 21 of the Convention may be
performed by approved private, for-profit adoption service providers.
(146 Cong. Rec. S8866 (daily ed. Sept. 20, 2000)).
Consistent with Article 22 of the Convention and the declaration
just discussed, the IAA establishes a system to accredit private non-
profit, and to approve for-profit, adoption service providers and
outlines specific standards the private providers must meet in order to
become accredited agencies (in the case of non-profits) or approved
persons (in the case of for-
[[Page 54067]]
profits and private individuals). The proposed regulations focus
exclusively on this essential process of accrediting agencies and
approving persons that wish to offer or provide adoption services in
Convention cases.\1\ These regulations contain detailed and
comprehensive standards intended to ensure that the United States
complies with the Convention, which requires that accredited agencies
and approved persons be directed and staffed by persons qualified by
their ethical standards and by training or experience to work in the
field of intercountry adoption, and be subject to supervision by
competent authorities of the Convention country as to their
composition, operation, and financial situation. Accredited agencies
and approved persons must also comply with the requirements of Article
32 of the Convention, which provides that no one shall derive improper
financial or other gain from activity related to an intercountry
adoption; only costs and expenses, including reasonable professional
fees of persons involved in the adoption, may be charged or paid; and
the key personnel of the agencies and persons involved in an adoption
shall not receive remuneration which is unreasonably high in relation
to services rendered. These proposed regulations reflect those
Convention requirements.
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\1\ The Convention uses the terms private accredited bodies and
bodies or persons to refer to adoption service providers. The IAA
uses the terms agency and person and accredited agency and approved
person to encompass such providers. The IAA terms--agency or person
and accredited agency or approved person--will be used from this
point forward in the Preamble and are defined in subpart A of part
96.
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D. Ability of U.S. Accredited Agencies and Approved Persons To Operate
in Other Convention Countries
Once accredited or approved, an agency or person may offer or
provide adoption services in the United States in Convention cases.
However, under Article 12 of the Convention, a private body accredited
in one Convention country may act in another Convention country only if
the competent authorities of both countries have authorized it to do
so. Thus, U.S. accredited agencies and approved persons are not
automatically entitled to operate in other Convention countries. In
practice, this means that even if a U.S. agency or person is accredited
or approved in the United States, another Convention country may choose
to work with only certain U.S. accredited agencies or approved persons.
Currently some Convention (and non-Convention) countries require
U.S. agencies and persons to be accredited under the laws and standards
of that Convention country. This practice may well continue. The
Department is hopeful that, to avoid duplicative accreditation
processes, and as permitted by Article 12 of the Convention, other
Convention countries will recognize the accreditation or approval
granted by the United States and permit U.S. accredited agencies and
approved persons to act inside the other Convention country without
requiring any further accreditation. The Department is mindful,
however, that some U.S. agencies or persons, especially those that work
in more than one Convention country, may well have to go through
several costly accreditation processes. One of the rationales for
drafting comprehensive, stringent standards for U.S. accreditation and
approval is to encourage other Convention countries to accept U. S.
accreditation or approval and not require further accreditation or
approval.
E. Timing of Implementation
In accordance with the U.S. Senate's conditions for ratification,
the Convention will not actually come into force for the United States
until the United States is able to meet its obligations under the
Convention and the U.S. instrument of ratification is deposited. Once
the instrument of ratification is deposited, the Convention will come
into force for the United States on the first day of the month
following the expiration of three months after the deposit (thus, after
a period of not less than three months and not more than four months).
Practically speaking, the United States must have accredited bodies
ready to provide adoption services before the Convention enters into
force for the United States. Thus, the regulations contemplate that the
accrediting entities will be able to use the standards in subpart F of
the regulations to begin accrediting agencies and approving persons
before the Convention enters into force for the United States. This
process of accrediting agencies or approving persons prior to the
actual entry into force of the Convention is necessary so that there
are agencies and persons legally permitted to provide adoption services
as of the date the Convention first enters into force for the United
States.
These regulations, therefore, will be effective prior to the date
the Convention comes into force for the United States to enable the
Department and its designated accrediting entities to perform the time-
consuming task of accrediting and approving private bodies. Certain
sections of these proposed regulations will not be operative, however,
until the Convention enters into force for the United States. The
proposed regulation by its own terms makes these sections effective
only after entry into force of the Convention. For example, the
provision that requires all agencies and persons to be accredited or
approved will become effective on the date that the Convention enters
into force. This approach is consistent with section 505(a)(2) of the
IAA, which provides that the IAA mandatory accreditation and approval
requirement take effect upon the entry into force of the Convention for
the United States. The Department will announce the entry into force
date for the Convention in the Federal Register. Until the Convention
enters into force for the United States, agencies and persons may
continue to provide adoption services without accreditation or
approval, even for adoptions involving other countries that are parties
to the Convention, if permitted by such Convention countries.
In summary, the steps taken prior to ratification of the Convention
are: (1) The Department, after publication of these proposed
regulations open to notice and comment, publishes the final
regulations; (2) The Department identifies and retains accrediting
entities; (3) The designated accrediting entities begin the process of
evaluating those agencies and persons that applied by the
``transitional application date'' (see Section C, Subpart D--
Application Procedures for Accreditation and Approval in this
Preamble); (4) The Department will set and announce a ``deadline for
initial accreditation and approval'' depending upon a number of
factors, including the number of agencies and persons that apply by the
transitional application date and the time the accrediting entities
require to evaluate these first applicants for accreditation and
approval; (5) The accrediting entities will send to the Department a
list of agencies and persons that have been accredited or approved by
the deadline for initial accreditation and approval; (6) The Department
will deposit the instrument of ratification and identify those agencies
and persons that are accredited or approved to provide adoption
services for Convention adoptions. The Convention does not come into
force for the United States until three to four months after the
instrument of ratification is deposited.
In addition, section 505(b)(1) and (2) of the IAA provides special
transition
[[Page 54068]]
rules for adoption cases that are pending when the Convention enters
into force for the United States. For immigrating children, the
Convention and the IAA will not apply where a petition regarding
adoption was filed with DHS before the Convention entered into force
for the United States. For emigrating children, the Convention and the
IAA do not apply if the prospective adoptive parent(s) have filed the
appropriate application to initiate the adoption process in their
country of residence before the Convention entered into force for the
United States. The regulations elaborating on these IAA transition
rules for Convention cases are not covered in this set of proposed
regulations on accreditation and approval. Rather, the regulations for
section 505(b)(1) and (2) of the IAA will be in part 97, which will
cover intercountry adoption procedures and will be proposed in a future
rulemaking.
IV. The Intercountry Adoption Act of 2000 (IAA)
A. Passage of the IAA
The IAA implements the Convention in the United States. In 2000,
Congress considered and passed the IAA during approximately the same
time period that the Senate was considering the Convention. 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)). The
treaty was read for the first time and then transferred to the Senate
Committee on Foreign Relations. To accompany the Convention, the
Department, with the involvement of the INS (now part of DHS) and the
Department of Health and Human Services (HHS), had drafted and
transmitted to both houses of Congress proposed implementing
legislation--entitled the Intercountry Adoption Act. That legislative
proposal was not introduced in Congress but influenced the implementing
legislation that was eventually introduced. On March 23, 1999, Senators
Helms and Landrieu and other co-sponsors introduced the Intercountry
Adoption Convention Implementation Act of 1999. (S. 682, 106th Cong.
1st Sess. (1999)). (A companion bill, identical to S. 682, was
introduced in the House by Congressman Burr (H.R. 2342, 106th Cong. 1st
Sess. (1999)). On September 22, 1999, Congressman Gilman, along with 36
co-sponsors, introduced the Intercountry Adoption Act of 1999. (H.R.
2909, 106th Cong. 1st Sess. (1999)). The Senate Foreign Relations
Committee held hearings on October 5, 1999, and also 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)).
S. 682/H.R. 2342 and H.R. 2909 differed in some major provisions.
In particular, S. 682 provided for the Department to have
responsibility for oversight of the accreditation and approval process.
In contrast, H.R. 2909 designated HHS as the Federal oversight agency,
as proposed by the Administration. Ultimately, the Department was given
the responsibility for establishing and overseeing the accreditation
and approval process. A consensus was reached on other controversial
issues and H.R. 2909, as amended, was passed by both the House and the
Senate. It was signed by the President on October 6, 2000, and became
Public Law No. 106-279.
B. Overview of Substantive Provisions
The IAA's purposes reflect and complement those of the Convention.
They are: To protect the rights of, and prevent abuses against,
children, birth families, and adoptive parents involved in adoptions
(or prospective adoptions) subject to the Convention, and to ensure
that such an adoption is in a child's best interests; and to improve
the ability of the Federal government to assist U.S. citizens seeking
to adopt children from abroad and residents of other countries party to
the Convention seeking to adopt children from the United States. To
accomplish these goals, the IAA provisions: (1) Set forth minimum
standards and requirements for accreditation and approval; (2) make
substantive changes to the Immigration and Nationality Act (INA) with
respect to Convention adoptions; (3) set requirements for completing
individual adoptions; and (4) confer specific responsibilities on the
Department and other government entities for carrying out the mandates
of the Convention and the IAA.
The IAA designates the Department as the Central Authority for the
United States. As Central Authority, the Department has a number of
important programmatic responsibilities, including: Acting as liaison
with other Central Authorities; coordinating activities under the
Convention; monitoring and facilitating individual cases involving U.S.
citizens, where necessary; and establishing and managing a Case
Registry of intercountry adoptions. Some important functions related to
the Convention are also vested in the Department of Justice, DHS, and
State courts. The Secretary of Homeland Security will assume certain
functions vested in the Attorney General and the INS by the IAA
relating to the Immigration and Naturalization Service's
responsibilities, pursuant to the Homeland Security Act of 2002, Public
Law 107-296 (Nov. 25, 2002), as amended by section 105 of the Homeland
Security Act Amendments of 2003. (See Consolidated Appropriations
Resolution, Public Law 108-7, Feb. 20, 2003). The Department expects
that the Attorney General will retain responsibility for enforcement of
the criminal and civil penalties imposed by section 404 of the IAA.
Once DHS has identified the specific bureau that will assume the
functions delegated to the Attorney General or the INS under the IAA,
the Department will provide that information.
Most relevant to these regulations, the IAA confers on the
Department the authority and responsibility for establishing and
overseeing a system for accrediting agencies and approving persons that
wish to provide adoption services in Convention cases. Consistent with
the Convention's acceptance of the use of private bodies, the IAA
authorizes the use of accredited agencies and approved persons to
complete certain case-specific Central Authority functions, rather than
relying exclusively on Federal or State entities. The IAA provides
detailed requirements for accreditation and approval. Rather than
mandating direct Federal accreditation of agencies and persons, the IAA
authorizes the Department to designate one or more accrediting entities
to accredit agencies and to approve persons that meet the requirements
for such entities set forth in these regulations.
The Convention and the IAA dramatically change the use of
accreditation in the adoption field. Traditionally, accreditation has
been a voluntary credentialing process used to encourage sound and
ethical practices. Under the IAA, accreditation or approval pursuant to
these regulations is now mandatory for agencies and persons that
provide certain adoption services in Convention cases.
To enforce this mandatory accreditation and approval requirement,
the IAA establishes civil and criminal penalties. (Pub. L. 106-279,
section 404). With limited exceptions set forth in section 201(b) of
the IAA and in subpart C of these regulations,
[[Page 54069]]
individuals or agencies that offer or provide adoption services in
connection with a Convention adoption without either (a) becoming
accredited or approved in accordance with these regulations, or (b)
acting under the supervision and responsibility of an accredited agency
or approved person are subject to civil money penalties of $50,000 for
the first violation and $100,000 for succeeding violations under
section 404(a) of the IAA. Under section 404(c), the knowing or willful
failure to become accredited or approved or to act under supervision
and responsibility, as required, carries a penalty of imprisonment for
not more than five years or fines of up to $250,000, or both. In
promulgating these regulations, the Department believes that it is
critical to alert all agencies and persons that the failure to obtain
accreditation or approval or to act under the supervision and
responsibility of an accredited agency or approved person could cause
the imposition of the IAA's severe civil or criminal penalties. Subpart
C of the regulations, which contains the rules on who must meet the
accreditation and approval requirements and incorporates the narrow
statutory exemptions from accreditation or approval, should be
consulted and carefully studied for guidance.
C. Distinction Between ``Agency'' and ``Person''
The Convention effectively differentiates between non-profit bodies
and for-profit entities and individuals. The Convention favors the use
of non-profit bodies, and Article 11 of the Convention requires that
``accredited'' bodies ``pursue only non-profit objectives''--a
requirement incorporated into these regulations by reference to non-
profit tax treatment under section 501(c)(3) of the Internal Revenue
Code or relevant State law. Notwithstanding this preference, the
Convention in Article 22 also permits other bodies and persons--herein
referred to as ``for-profits''--to provide Convention adoption
services. Persons (for-profit entities and individuals) must, however,
meet the requirements of Article 22(2) of the Convention, which are not
applicable to non-profit agencies. Article 22(2) requires persons to
have the integrity, professional competence, experience,
accountability, ethical standards, and training or experience to work
in the field of intercountry adoption. Moreover, Article 22(4) of the
Convention explicitly allows party states to declare that the adoption
of their children may take place only if the functions of Central
Authorities are performed by public authorities or accredited agencies
(effectively, for U.S. purposes, private non-profits) and not by
approved persons (effectively, for U.S. purposes, ``for-profits'').
These regulations reflect the Convention distinction by utilizing
different terms to describe non-profit agencies versus for-profit
entities and individuals. Under these regulations, agency means a
private, non-profit organization licensed to provide adoption services
in at least one State. It does not include individuals or for-profit
entities. Person means an individual or for-profit entity (including a
corporation, company, association, firm, partnership, society, or joint
stock company) providing adoption services--consistent with the
definition in section 3(14) of the IAA. To be consistent with the
Convention's requirement that only non-profit agencies be accredited,
the IAA provides for the accreditation solely of agencies and uses a
different term--approval--to describe the status of individuals and
for-profit entities. (See Pub. L. 106-279, section 203). Therefore,
under the IAA's rubric, agencies are eligible to seek accreditation
while persons (individuals and for-profit entities) are eligible only
to seek approval.
The Department has made every attempt within the given statutory
framework to ensure that persons adhere to the same requirements as
non-profit agencies. Thus, the standards in subpart F of part 96 (with
limited exceptions to recognize the special circumstances of private
individuals) apply both to agencies seeking accreditation and to
persons seeking approval. Sections 96.31 and 96.35 also contain
provisions unique to persons seeking approval. They mainly provide
standards tailored to the different corporate structures used by such
persons or contain more rigorous provisions than those applicable to
agencies in light of the additional Article 22(2) provisions on
professional competence that apply only to persons. Also, the
Convention allows only accredited agencies, not persons, to assume
responsibility for preparing a home study or a child background study.
The proposed rules, therefore, provide that, when an approved person or
a non-accredited agency, rather than an accredited agency, completes a
home study or child background study, it must have the home study or
child background study approved by an accredited agency. The approval
requirement is included so as to comply with Article 22(5) of the
Convention which requires that home studies and child background
studies be prepared under the responsibility of accredited agencies or
public authorities.
Although the IAA allows approved persons to provide adoption
services in Convention cases, some State laws do not. These regulations
are not intended to affect any State laws that may prohibit such
persons--either individuals or for-profit entities--from providing
adoption services in a particular State. If a State does not allow
persons (whether the prohibition is against individuals or for-profits
or both) to operate in a particular State, these regulations do not in
any way preempt such State law. The Department welcomes comments on the
interplay between State law and the IAA provision for approval of
persons. The Department's goal is to follow the IAA and allow persons
to be approved without preempting State laws that may prohibit
individuals or for-profit entities from providing adoption services in
a particular State.
Persons seeking approval should note that these regulations require
them to be licensed or otherwise authorized to provide adoption
services in at least one State. If in the future all States were to
prohibit for-profit entities from providing adoption services, then no
for-profits could become approved under these regulations. Similarly,
if in the future all States prohibited individuals from providing
adoption services, then no individuals could become approved under
these regulations.
According to Article 22(4) of the Convention, Convention countries
may declare that adoptions of children habitually resident in their
territory may take place only if the functions of the Central Authority
in the receiving country are performed by public authorities or by non-
profit accredited bodies. Thus, individual Convention countries may
refuse altogether to work with approved persons and may be willing to
work only with accredited agencies.
D. Federalism Issues
The Convention and the IAA for the first time require Federal
regulation of agencies and persons for purposes of intercountry
adoptions. Historically, State law alone regulated agencies and
persons. The IAA contains a specific provision disfavoring preemption
of State law unless State law provisions are inconsistent with the
Convention or the IAA. (Pub. L. 106-279, section 503(a)). The
Department throughout the regulations has been careful to defer to
State law, especially in the case of U.S. emigrating children whose
adoptions will continue to be covered mainly by
[[Page 54070]]
State law, even when not explicitly required by the IAA. In particular,
the regulations require agencies and persons to comply with any
applicable licensing and other laws and regulations in the States in
which they operate, and do not supplant existing State licensing and
other laws and regulations. For example, when a State requirement
exceeds a standard in subpart F of part 96, the agency or person must
also comply with the State requirement as necessary to ensure that it
maintains its State license. Similarly, when the IAA standard for
accreditation or approval is more stringent than a State requirement,
the agency or person must meet the IAA standard as well as the State
standard. Also, the regulations utilize State law definitions whenever
possible. For example, the regulations defer to State law to define
``best interests of the child'' instead of developing a Federal
definition that would replace existing State law definitions. Finally,
a number of the standards, such as those relating to internet use,
expressly require observance of State as well as Federal law.
The impact of the Convention and the IAA is clearest in cases of
U.S. children emigrating from the United States to a Convention country
in connection with their adoption. Previously, State law alone governed
cases of children emigrating for adoption, whereas there has been
Federal involvement (through the immigration laws) in incoming cases.
Now adoptions involving emigration to Convention countries must comply
with the procedures and safeguards of the Convention (such as those of
Convention Articles 4 and 17) and the IAA, which include requirements
that may not currently exist in State law. Under these regulations, the
burden of making the majority of the Convention and the IAA
determinations for emigrating children is unavoidably placed on State
courts. The Department assumes that these determinations generally will
be made in the context of adoption or placement proceedings that would
occur in any event, and that the States may charge fees to cover the
costs of these services. Nevertheless, the Department is sensitive
about imposing additional burdens on States; therefore, the regulations
do not call for State court action other than as strictly required to
permit an adoption under the Convention or the IAA. States that do not
wish to undertake even those minimal requirements may refrain from
permitting Convention adoptions or placements in their jurisdictions.
Also, throughout the preliminary input phase, State agencies were
asked to submit comments on the draft regulations and such input was
used in the drafting of the proposed regulations. The Department
welcomes comments from State and local agencies and tribal governments
on the proposed regulations and in particular seeks comment on the
standards covering cases in which a child is emigrating from the United
States in Sec. Sec. 96.53, 96.54, and 96.55 of subpart F.
E. Economic Impact/Effect on Small Entities
One of the most challenging issues facing the Department was how
comprehensive and stringent these standards should be, bearing in mind
the desirability of minimizing the cost and burden on agencies and
persons, especially on small entities. The Department throughout the
development of the proposed regulations considered the economic burden
of this completely new Federal level of regulation. Some groups called
for extensive Federal regulation of agencies and persons without
acknowledging the added costs such standards would entail. The
Department has sought to strike a balance--using the IAA statutory
standards as guidance--between the need to avoid costly over-regulation
of what traditionally has been an area regulated almost exclusively by
State law and the need to have comprehensive standards designed to
ensure that Convention and IAA requirements are met and to improve the
quality of services provided to birth families, adoptive families, and
children. The Department believes that the overall economic impact of
the proposed regulations has been minimized using this approach;
therefore, there is not sufficient impact to warrant preparation of a
regulatory impact analysis (RIA) under Executive Order 12866 or other
similar mandates. In particular, the Department has analyzed the
proposed regulations and concluded that they will not have an annual
effect on the economy of $100 million or more or adversely affect in
any material way the economy, jobs, productivity, the environment,
public safety, or health.
The Department arrived at this conclusion based on the information
provided from adoption service providers, accrediting entities, and
others in the adoption community during the preliminary consultation
process. The Department also relied on its statistics regarding the
number of intercountry adoptions per year and the number of
intercountry adoptions per year with other Convention countries. The
Department used the data on the number of intercountry adoptions for FY
2002, FY2001, and FY 2000. Using the information on the range of costs
of providing adoption services gathered during the consultative process
and the Department's data on the number of intercountry adoptions per
year, the Department was able to make some estimates about the current
economic status of the non-profit, adoption service provider sector of
the economy.
For FY October 2001 to September 2002, U.S. citizens adopted 21,378
children from other countries. For FY October 2000 to September 2001,
U.S. citizens adopted 19,224 children from other counties. For FY
October 1999 to September 2000, U.S. citizens adopted 18,477 children
from other countries. Thus, using this historical data, the Department
assumed that the typical number of intercountry adoptions per year is
20,000. The cost for intercountry adoption and related services to
parents may range from $20,000 to $30,000 per case. Assuming 20,000
intercountry adoption cases per year, the Department estimates that the
total expenditures for adoption services and related costs and the
total annual gross revenues for non-profit adoption service providers
could range from between $400 to $600 million per year (an estimate
that includes the costs of travel and accommodations as well as charges
imposed by the sending countries on the adoptive parents). The total
costs of providing adoption services could vary from year to year
depending upon the number of intercountry adoptions as well as other
factors. However, even if the Department uses adoption services cost
estimates that include travel and local services, the current total
size for the non-profit sector to be regulated is small--that is,
between $400 to $600 million.
Additionally, in intercountry adoption cases, a significant portion
of the reported costs of providing services in a particular adoption
case may include the costs of travel and accommodations for the parents
and child during the adoption process as well as local costs imposed by
the sending country. These costs are incurred directly by the adoptive
parents or are charged by the adoption service provider as fees and
passed on to the public or other entities in the sending country. The
cost of providing intercountry adoption services, excluding the cost of
travel and accommodations and the costs of local services, varies
widely depending on the provider as well as the country of origin for
the child. The travel and local services costs are unlikely to be
affected by the implementation of this proposed
[[Page 54071]]
rule. The Department estimates that the cost of providing intercountry
adoption services, excluding travel and local services costs, may be
from 25% to 80% lower than the estimated range of $20,000 to $30,000
per adoption case. If it is assumed that the costs would be 25% less
than the estimated range, then the costs of providing adoption services
may range from between $15,000 to $22,500 per adoption case. If it is
assumed that the costs would be 80% less than the estimated range, then
the costs of providing adoption services may range from $4,000 to
$6,000 per adoption case. It is this segment of adoption services costs
(which excludes travel and local in-country services costs) that is
most likely to be affected by the proposed rule. Thus, the total size
of the non-profit sector to be regulated, rather than ranging from $400
to $600 million, may be viewed as ranging from $80 million to $450
million.
At least initially, the number of agencies and persons affected by
the proposed rule is likely to be small because the current number of
cases subject to the Convention is small. Currently, most intercountry
adoptions to the United States are from non-Convention countries. For
example, for FY 2002, the number of cases with Convention countries was
1,433; for FY 2001, the number of cases with Convention countries was
1,680; for FY 2000, the number of cases with Convention countries was
2,025. (The number of intercountry adoption cases from Convention
countries to the United States to date has changed from year to year
for a variety of reasons, including because new countries ratify or
accede to the Convention, or sometimes a Convention country declares a
moratorium on intercountry adoptions.) In future years, any increase in
the cost of the rule may be incremental, as new countries join the
Convention and agencies and persons that assist with adoptions in those
countries are required to come into compliance.
Using the data on the number of adoptions from Convention
countries, the Department notes as follows: For FY 2002, the percentage
of Convention cases out of a total of 21,378 was 6.7%; for FY 2001, the
percentage of Convention cases out of a total of 19,224 was 8.7%; for
FY 2000, the percentage of Convention cases out of a total of 18,477
was 11.0%. It is only those agencies and persons who will be providing
adoption services in cases where the other country is a party to the
Convention that will have to comply immediately with the requirement to
become accredited or approved. Therefore, intercountry adoptions with
countries party to the Convention account for adoption services costs
in the range of $28.6 million to $43.0 million when estimated travel/
accommodations and local services costs are included in the cost of
providing adoption services in a case. Similarly, intercountry
adoptions with countries party to the Convention account for adoption
services revenues in the range of $5.7 million to $32.3 million when
estimated travel/accommodations and local services costs are excluded.
Under this analysis, the Department's estimates show that the total
costs for adoption services provided (which could range from $5.7
million to $43.0 million) in the number of cases immediately subject to
the proposed rule is very likely to be less than the $100 million
Executive Order 12866 threshold.
Furthermore, the Department expects the total cost burden of the
rule to be substantially less than the current total estimated cost of
providing adoption services regardless of which analysis is used to
calculate the total yearly costs associated with providing adoption
services. During the consultation process thus far, the Department has
not received any information that would indicate that the cost to the
adoption community of compliance with the proposed regulations would be
near the current cost of providing adoption services. Rather, all
indications are that the cost to comply will be a fraction increase in
the current cost of providing adoption services. Therefore, the
Department considers the total cost of adoptions to be a reasonable
upper limit on the possible cost of the proposed rule. The Department,
however, requests comments on its cost estimates and in particular
requests that commenters address the following questions: (1) How many
agencies are likely to seek full accreditation in accordance with
subpart F rather than temporary accreditation under subpart N? (2) What
are accrediting entities likely to charge the agencies and persons for
the accreditation and approval process? (3) Is the estimated cost of
providing adoption services(estimated to range from $20,000 to $30,000)
in a particular case a current reasonable estimate? (4) What proportion
of the costs of rendering adoption services are pass-through costs
forwarded to foreign entities providing local services in the sending
country? (5) What proportion of the costs for adoption services in a
particular case is for the costs of travel and accommodations? (6) How
many persons (for-profits and individuals) plan to seek approval? (7)
What are the estimated costs agencies and persons will have to expend
to comply with the standards in subpart F? Specifically, commenters
should provide information on the costs of obtaining insurance coverage
as required by the standards in Sec. 96.45 and Sec. 96.46; the costs
of retaining personnel that meet the professional and educational
requirements in Sec. 96.37; and the costs of providing the mandatory
training to prospective adoptive parent(s) in Sec. 96.48. Comments or
concerns about the cost impact of any other standard in subpart F or
subpart N are welcome. It would be helpful if commenters supply
information and data to support any comments on these enumerated
issues.
The Department also considered the potential impact of these
regulations on small entities, as required by the Regulatory
Flexibility Act and Executive Order 13272. The Department has sought to
ensure that the standards do not unnecessarily or adversely affect the
currently sound practices of small agencies and persons, especially
since almost all of the agencies and persons covered would meet a Small
Business Administration (SBA) definition of a small entity for this
type of non-profit service provider. Concerns about minimizing any
increases in the cost of intercountry adoption and any unnecessary
adverse impact of these regulations on small entities were of utmost
importance in the Department's decision-making process, and great care
was taken to address these concerns while still seeking to ensure
compliance with the Convention and the IAA mandate for comprehensive
regulation of adoption service providers. To minimize the impact on
small entities, the Department developed regulations that are
performance-based accreditation standards (see subpart F) as opposed to
design-oriented, licensing criteria. Consistent with the IAA, the
regulations also provide a special tiering set-up and a different
implementation timetable for small agencies by allowing for a temporary
accreditation process (see subpart N). Also, again consistent with the
IAA, the regulations contain exemptions for small providers, such as
home study preparers, and permit agencies and persons to act as
supervised providers rather than requiring them to complete the full
accreditation or approval process (see subpart C).
The Department is cognizant that the cost of providing adoption
services is closely related to the level and type of regulation. The
Department is aware that ultimately the costs of accreditation and
approval will be passed on to
[[Page 54072]]
adoptive parents and may increase the cost of providing services in
each individual adoption. Moreover, the Department also weighed the
difficulties for families of absorbing additional costs for adoption
services against the requests, often from adoptive families, for better
services and more public information about agencies and persons, so
that families could compare providers before selecting an adoption
service provider. The Department also took into consideration the
relevant assistance available to families, such as the Federal adoption
tax credit, to offset increased costs of services. Therefore, the
Department sought at all times to strike the appropriate balance among
competing objectives. The Department understands, however, that
revision of these standards may be necessary after further public
comment and particularly welcomes comment on the effect of these
regulations on both non-profit and for-profit small entities. The
Department requests that agencies or persons who submit such proposals
provide information on their size, non-profit or for-profit status, and
identify what specific standards should be added, modified, or deleted,
and include justifications for any such suggestions.
F. The IAA Exemptions to the Paperwork Reduction Act
Pursuant to 44 U.S.C. 3506(c), 3507, and 3512, which were enacted
by the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13,
agencies normally are required to submit to OMB for review and approval
new ``collections of information,'' including any collections of
information inherent in a final rule. Information collections under the
PRA are defined, in 44 U.S.C. 3502(3), to include ``obtaining, causing
to be obtained, soliciting, or requiring the disclosure to third
parties or the public, of facts or opinions by or for an agency,
regardless of form or format, calling for * * * answers to identical
questions posed to, or identical reporting or recordkeeping
requirements imposed on, ten or more persons.'' OMB has interpreted
this definition to include information collections regardless of
whether they are ``mandatory, voluntary, or required to obtain or
retain a benefit.'' (5 CFR 1320.3(c)).
Section 503(c) of the IAA specifically exempts sections 104,
202(b)(4), and 303(d) of the IAA from these PRA requirements. (Pub. L.
106-279, section 503(c)). Given these statutory exemptions to the PRA,
the Department has determined that the collections of information in
this proposed rule are exempt from PRA requirements, with the exception
of the collections in Sec. Sec. 96.91 and 96.92 of subpart M, which
are discussed in the PRA analysis in the Regulatory Review portion of
the Preamble (Part VI, Section G).
The implications of the PRA exemptions in section 503(c) of the IAA
are that, with respect to the exempted information collections, the
Department is not required to follow the procedures established by 44
U.S.C. 3506(c) for reviewing information collections, allowing public
comment on them, and then certifying that they meet the requirements
set forth in that section. In addition, the exemption from 44 U.S.C.
3507 means that the Department may sponsor the exempted collections of
information without complying with 44 U.S.C. 3506, and that the
Department is not required to obtain a control number from OMB
indicating its approval of the collections. Nor are the exempted
information collections subject to the three-year validity period
limitation imposed by 44 U.S.C. 3507(g), after which covered
information collections must be revalidated. Finally, the exemption
from 44 U.S.C 3512 means that the Department may require compliance
with the exempted information collections, and may impose penalties for
failing to comply, even though the collections will not display an OMB
control number. Consistent with the IAA's accreditation and approval
scheme, the consequences of failing to provide or retain information,
or of otherwise failing to comply with the requirements of an exempted
information collection, will be felt through the accreditation and
approval process itself (including, when appropriate, through denial of
accreditation or approval or the imposition of adverse actions which
can result in loss of accreditation or approval).
The IAA exemptions from the PRA were sought by the Department
because of concerns that application of the normal PRA requirements
would have been largely inconsistent or incompatible with the
accreditation/approval and oversight framework established by the IAA.
First, the IAA mandates a number of reporting requirements, some of
which are driven by the need to ensure U.S. compliance with the
Convention. Without an exemption, the PRA and its three-year limitation
on collections of information would have interposed a periodic
justification process that would have been unnecessary in view of the
IAA's permanent and very specific statutory reporting requirements and
that could have impeded collection of information necessary to meet our
Convention obligations.
Second, the IAA leaves much of the responsibility for accreditation
and approval to the private sector and adopts a private sector model
for accreditation/approval that is fundamentally inconsistent with the
information collection controls imposed by the PRA. An accreditation
process by its nature requires the preparation and presentation of
documentation to an accrediting entity to demonstrate qualifications.
This process alone typically takes a year or more in existing
accreditation contexts. Monitoring by an accrediting entity once
accreditation or approval is granted, to determine whether
accreditation or approval can be maintained, similarly requires the
retention and sometimes the preparation of records for inspection by an
accrediting entity. Consistent with an accreditation model, and with
the decision to rely heavily on the private sector to implement the
Convention in the United States, the IAA requires adoption services
providers to be accredited or approved by a private, non-profit
accrediting entity (or if so designated as an accrediting entity, by a
State public body). The IAA, however, also ensures appropriate Federal
oversight and compliance with the Convention by requiring any
accrediting entity to act pursuant to regulations, including
accreditation/approval standards, promulgated by the Department. As in
other accreditation contexts, the IAA clearly contemplates an extended
start-up period in which providers demonstrate to any one of the
designated accrediting entities that they meet the standards for
accreditation/approval. The IAA also specifically provides that the
accreditation/approval period will be three-to five-years, and that
there will be continuous monitoring of accredited agencies and approved
persons by an accrediting entity in light of the standards during their
period of accreditation or approval.
Imposition of the PRA requirements on this process could have
burdened it to the point where it could not function. It would be
difficult to adapt the PRA process in a meaningful way to the IAA's
accreditation/approval process, which fundamentally involves the
ongoing measurement of performance against standards through document
review. The PRA's provision for the expiration of collections of
information after three years, unless reviewed and renewed, would also
have directly interfered with the need for settled procedures and
standards that both the accrediting entities and the providers could be
sure would remain in effect
[[Page 54073]]
during both the period of application and any selected period of
accreditation or approval. (Under the IAA, the Secretary may select an
accreditation/approval period of three, four, or five years.)
The IAA exemptions from the requirements of the PRA must be
understood in this context. The Department understands that the
exemptions were intended to be construed broadly to facilitate
implementation of an accreditation/approval process as envisioned by
the IAA. At the same time, however, the IAA expressly requires that
these regulations, including the standards for accreditation and
approval, be published for notice and comment under the Administrative
Procedure Act (APA). Thus, the IAA ensures public participation in the
creation of all elements of these regulations, including those that
could have effects of the kind normally addressed through PRA review.
As noted, the three provisions of the IAA exempt from the PRA
provisions discussed above are sections 104, 202(b)(4), and 303(d). The
following explains how these exemptions relate to the proposed
regulations, to the extent that they include ``information
collections'' under the PRA:
Section 104 of the IAA. Section 104 of the IAA requires the
Department to make annual reports on intercountry adoptions to several
congressional committees. The IAA lists the information and data that
must be collected and conveyed annually to Congress. To ensure the
availability of this information to the Secretary, the proposed
regulations include standards addressing the information accredited
agencies and approved persons must be prepared to provide to their
accrediting entity and the information the accrediting entity must in
turn provide to the Secretary. Within subpart F, Sec. 96.43 of the
regulations requires the agencies and persons to provide to the
accrediting entity the information listed in section 104 of the IAA.
Section 96.93 of subpart M of these regulations similarly mirrors the
statutory requirements and mandates that the accrediting entity obtain
the information from the agencies and persons.
Section 202(b)(4) of the IAA. Section 202(b)(4) of the IAA provides
that the accrediting entity's responsibilities shall include
``[c]ollection of data, maintenance of records, and reporting to the
Secretary, the United States central authority, State courts, and other
entities (including on persons and agencies granted or denied approval
or accreditation), to the extent and in the manner that the Secretary
requires'' (emphasis added). The Department understands the concept of
``collection of data'' by the accrediting entity ``to the extent and in
the manner that the Secretary requires'' to encompass the Secretary's
decisions regarding what data must be provided by the adoption service
providers to the accrediting entities and what data may be collected by
the accrediting entities in the course of performing any of their
duties under the IAA, including deciding whether an adoption service
provider can be accredited or approved, conducting oversight
activities, and taking enforcement actions. (Pub. L. 106-279, section
202(b)(1)-(3)). The Department, as the lead agency responsible for
interpreting the IAA and the IAA's exemptions to the PRA, believes that
the IAA's expansive discretionary language (that is, information may be
collected ``to the extent and manner required by the Secretary'')
demonstrates that Congress intended the scope of this exemption to the
PRA to be broad.
Thus, as developed in these regulations, the exemption covers
determining the provider's compliance with the standards for
accreditation/approval in subpart F (or, in the case of temporarily
accredited agencies, in subpart N). It also covers obtaining
information from adoption service providers as they apply for
accreditation or approval and in the course of monitoring their
performance under the standards. The exemption in section 202(b)(4) of
the IAA also extends to information the accrediting entity is required
to provide to the Secretary, any entity acting on behalf of the
Secretary (including the Complaint Registry, to the extent that it will
assist the Secretary in addition to the accrediting entities), and to
law enforcement officials and State courts. The exemption thus extends
to the portions of these regulations that require such disclosures or
that otherwise are intended to ensure that the Department is able to
perform its oversight responsibilities under the IAA. As a result of
this exemption, the Department has determined that all of the
information collections established by these regulations that are not
covered by the exemption of IAA sections 104 (discussed above) and
303(d) (discussed below) are covered by the exemption in section
202(b)(4) of the IAA, with the exception of certain collections
required under subpart M, as discussed below.
Section 303(d) of the IAA. Section 102(e) of the IAA requires the
Secretary and the Attorney General to establish a case registry of all
incoming and outgoing intercountry adoption cases, regardless of
whether they occur under the Convention. In furtherance of this
requirement, section 303(d) of the IAA requires that all agencies and
persons providing adoption services in connection with an ``outgoing''
intercountry adoption not subject to the Convention file certain
information with the Case Registry as required by the Secretary and the
Attorney General through joint regulations. (The Department expects
these functions of the Attorney General to be assumed by the Secretary
of Homeland Security.) The standards for accreditation/approval in
these proposed regulations include standards in subpart F at Sec.
96.43 and, for supervised providers, at Sec. Sec. 96.45(b)(11) and
96.46(b)(11), relating to compliance with the joint regulations
contemplated by section 303(d). (The joint regulations have not yet
been proposed.) Because IAA section 503(c) exempts section 303(d) from
the PRA requirements, these proposed standards, which are designed to
promote observance of the requirement of section 303(d), are exempt.
V. The Proposed Implementing Regulations on Accreditation and Approval
A. Public Input on the Proposed Regulations
In the IAA itself, Congress explicitly required the Department,
when developing these regulations, to consider the views of the
adoption community. Specifically, the IAA provides:
[T]he Secretary shall consider any standards or procedures
developed or proposed by, and the views of, individuals and entities
with interest and expertise in international adoptions and family
social services, including public and private entities with
experience in licensing and accrediting adoption agencies. (Pub. L.
106-279, section 203(a)(2)).
The Department took this mandate very seriously and considered the
views of the adoption community before drafting this proposed
regulation. While a number of changes to current practice will be
necessary and desirable to come into compliance with the Convention and
the IAA, the Department looked to the adoption community for ideas as
to how it should implement its responsibilities. In particular, to
comply with the section 203(a)(2) mandate in the IAA, the Department
issued a Scope of Work to identify a consulting firm with expertise in
accreditation and intercountry adoption. After considering proposals
from interested consultants, the Department retained the private firm
of Acton Burnell, which undertook
[[Page 54074]]
consultations with the public and formulated suggestions for the
proposed accreditation regulations in the form of an initial draft.
Acton Burnell undertook extensive research and consultation that
included review of current, private accreditation standards, analysis
of applicable State regulations, and solicitation of input from members
of the adoption community, including adoption service providers,
professional membership organizations, advocacy groups, coalition
groups, birth parents, adoptive parents, adoptees, legal, medical, and
social work professionals, Federal and State public bodies, and
standard-setting and regulatory professionals.
The Department requested that Acton Burnell establish a multi-
disciplinary team of experts in accreditation and intercountry adoption
and use an open process designed to ensure that all segments of the
adoption community had a full opportunity to provide input at public
meetings and to articulate their opinions and concerns. In response,
Acton Burnell set up an interactive Web site to keep the public
informed about the project. It also created and disseminated two
surveys in conjunction with the public meetings--one for agencies and
persons and one for prospective adoptive parents, adoptive parents,
birth parents, and adoptees. Acton Burnell then announced and convened
a public meeting on April 2, 2001, to gather input for the regulations.
Any person was permitted to send in statements or other material prior
to the first meeting, and copies of such statements were made available
to attendees. Additionally, all interested persons were welcome to
attend and had the opportunity to address the Acton Burnell team and
other attendees. Acton Burnell received considerable public input,
including actual proposed standards from various coalition groups as
well as statements from adoption research organizations and input from
other advocacy groups. It considered the input from all of these
sources and used it to produce draft proposed regulations that were
made available to the public on a Web site at http://www.hagueregs.org.
After publishing an initial draft of the regulations, Acton Burnell
convened a second set of public meetings on June 18 and 19, 2001, and
invited all interested persons to submit written statements. Department
personnel attended these meetings. Submitted statements were circulated
amongst the attendees and those that had been provided in electronic
form were posted on the Web site. After considering all of the input
provided, including, but not limited to, the information from the
surveys, the content from written statements sent, and the oral
statements given at the public meetings, Acton Burnell produced another
draft of the regulations which it submitted to the Department on July
31, 2001. The Acton Burnell team then engaged in extensive
consultations with the Department and produced further revised
recommended draft regulations. The Department permitted the revised
draft regulations to be posted on the Web site in October and December
of 2001. The revised draft regulations were posted on the Web site for
informational purposes, but not for additional public comment. The
multiple draft regulations produced by Acton Burnell and posted on its
Web site were not subject to the notice and comment provisions of the
APA, 5 U.S.C. 553, because it was understood that the Department would
use the Acton Burnell product to formulate its own version of the
proposed regulations, which would be subject to APA notice and comment.
B. The Department's Preparation of the Proposed Regulations
The Department has considered all of the public input and the
substantive recommendations and proposed draft regulations published by
Acton Burnell and submitted to the Department for review. The
Department also relied heavily upon the standards for accreditation and
approval listed in section 203(b) of the IAA to determine what
performance and organizational standards to include in the regulations.
It also looked to the legislative history of the IAA, as appropriate,
and consulted with interested congressional staff. Most important, the
Department looked to the guiding principles provided by the Convention.
Where the Convention delineates certain tasks that must be completed
for an adoption to proceed, the regulations set a standard governing
how accredited agencies and approved persons must complete those tasks.
The Department also tried to ensure that the regulations fully
reflect the Federal government's obligations under the Convention and
the IAA. Further, the Department crafted the regulations to facilitate
practical implementation. The Department also sought to ensure that the
regulations protected birth parents, adoptive parents, and children
involved in a Convention adoption. In particular, the regulations
address certain undesirable and problematic practices that the
Department has observed through its current work with intercountry
adoptions.
Also, when considering the regulations applicable to accrediting
entities, the Department kept in mind the need to find competent and
willing accrediting entities. The Department did not want to create
inflexible regulations that would discourage any accrediting entity
from seeking to be designated. Therefore, the Department examined the
current practices of accrediting entities and attempted to create
uniform procedures without completely modifying current practice. As a
variety of organizations, including State entities, may seek
designation, the regulations are intended to be as flexible as feasible
to encourage many entities to seek designation. The Department would
prefer to have a number of accrediting entities, in order to expedite
the initial accreditation and approval phase, to avoid a bottleneck of
applicants, and to ensure geographical diversity and competition with
respect to fees and services.
The Department recognizes that by proposing to regulate accrediting
entities, in addition to entering into the anticipated Agreements
between the Department and the accrediting entities, the Department is
binding potential accrediting entities to certain practices in advance
of their designation. Potential accrediting entities should be aware
that they will be bound by the final regulations and that the
Department's flexibility in negotiating Agreements will be limited by
the final regulations. The Department is mindful that these procedures
may be different from the practices that prospective accrediting
entities use in other, non-Convention contexts. The Department welcomes
public comment on the substance and level of the regulation of
accrediting entities and the tasks expected of them, especially from
any potential private accrediting entities or State entities that are
considering becoming designated accrediting entities.
Finally, the Department considered the views of all members of the
adoption community. The Department recognizes that there are many areas
of consensus within the adoption community as well as a number of
critical issues on which some elements of the community remain divided.
The regulations had to draw a number of difficult compromises that are
likely to evoke comment or dissent from one or more segments of the
adoption community. While preparing the proposed regulations, the
Department has tried to balance all the input received and also craft
proposed regulations that are consistent with the Convention and the
IAA. Also, the
[[Page 54075]]
Department had to adapt the work product of Acton Burnell into a
Federal regulatory format and to address a number of issues that had
not been raised or addressed during the preliminary public input phase.
These regulations are now published for notice and comment under the
APA, 5 U.S.C. 553, as required by the IAA.
C. Overview of the Proposed Regulations
These regulations contain the following sections: Subpart A
contains the definitions governing the use of defined terms throughout
these regulations. Subpart B sets forth the process by which the
Department will designate one or more accrediting entities to perform
the accreditation and approval functions and describes the authority
and responsibilities of accrediting entities. Subpart C articulates the
accreditation and approval requirements of the IAA by describing which
entities are covered by the IAA's requirements, delineating the
exceptions to those requirements, and addressing the responsibilities
of public bodies that provide adoption services in Convention cases.
Subparts D and E describe the process for seeking and being evaluated
for accreditation or approval. Subpart F sets forth in detail the
standards for accreditation and approval, including the parameters and
requirements for working with entities or individuals in the United
States or in other Convention countries that are not accredited or
approved but will act under the supervision and responsibility of an
agency or person accredited or approved in the United States. Subparts
G and H address notification of accreditation and approval decisions
and the process for renewing accreditation or approval. Subparts I, J,
K, and L cover monitoring of and complaints against accredited agencies
and approved persons, adverse actions against accredited agencies or
approved persons by the accrediting entity, and suspension,
cancellation, or debarment of accredited agencies or approved persons
by the Secretary. Subpart M addresses how and under what circumstances
the accrediting entities will disseminate and report information about
accredited agencies and approved persons to the public and to the
Secretary. Finally, subpart N sets forth the procedures and standards
for temporary accreditation.
1. Subpart A--General Provisions
Subpart A contains the definitions for part 96. Most of the
definitions are taken directly from the IAA. If a specific definition
substantially affects a particular provision in the proposed
regulation, the definition typically is addressed below in the context
of discussion of that provision. The IAA definition of Convention
adoption, however, has ramifications throughout the regulations, and
thus is addressed in this introductory section.
The definition for Convention adoption was difficult to draft
because the Convention and the IAA contain differently worded rules for
when the Convention will apply to a particular intercountry adoption.
Article 2 of the Convention, provides: ``the Convention shall apply
where a child habitually resident in one Contracting State (`the State
of origin') has been, is being, or is to be moved to another
Contracting State (`the receiving State') either after his or her
adoption in the State of origin by spouses or a person habitually
resident in the receiving State, or for the purposes of such an
adoption in the receiving State or in the State of origin.'' (S. Treaty
Doc. 105-51, Art. 2). Under the IAA, however, a Convention adoption is
defined as an adoption of a child resident in a foreign country party
to the Convention by a U.S. citizen, or an adoption of a child resident
in the United States by an individual residing in another Convention
country. (Pub. L. 106-279, 3(10)).
The regulations attempt to clarify the IAA definition of Convention
adoption and to harmonize the Convention and the IAA definitions. The
IAA definition of Convention adoption, taken literally, would include
every adoption in a Convention country by a U.S. citizen. For example,
the definition would include children outside the United States adopted
in accordance with a country's adoption procedures by a U.S. citizen
parent who did not intend to move the child back to the United States.
In such situations, the country of origin usually does not treat the
adoption as an intercountry adoption covered by the Convention and thus
requiring the use of accredited agencies or approved persons. The
Department does not believe that the intent of the IAA or the
Convention was to treat all adoptions of children in a Convention
country by a U.S. citizen parent as intercountry adoptions covered by
the Convention. Therefore, the definition of Convention adoption in
Sec. 96.2 construes the IAA definition of Convention adoption by
specifying the requirement that the child, in connection with his or
her adoption, must have moved, or there must be an intent to move the
child, from one Convention country to another Convention country. This
interpretation of the IAA definition of Convention adoption is intended
to make clear that adoptions by a U.S. citizen residing abroad, even in
a country party to the Convention, are not always automatically
intercountry adoptions covered by the Convention where the adopting
parent is a U.S. citizen. The Department welcomes comment on the
definition of Convention adoption, especially from those organizations
or agencies and persons who assist U.S. citizens residing abroad with
adoptions and from prospective and adoptive parents living abroad as
well.
2. Subpart B--Selection, Designation, and Duties of Accrediting
Entities
Subpart B addresses the Department's designation of accrediting
entities. The Department will designate one or more private, non-profit
organizations or State-based authorities to act as accrediting entities
and enter into agreements with them for this purpose. Such entities
will have responsibility for: Evaluating the eligibility of agencies
and persons for accreditation or approval and granting or denying
accreditation or approval; determining whether to renew accreditation
or approval; monitoring and addressing complaints against accredited
agencies and approved persons; taking adverse action against accredited
agencies and approved persons; and disseminating and reporting
information about accredited agencies and approved persons. Subpart B
sets forth the eligibility criteria for designation as an accrediting
entity, additional requirements for designation, the authorities and
responsibilities of accrediting entities, the general content of the
Agreement, and what actions the Department may take against an
accrediting entity that fails to fulfill its responsibilities as set
forth in these regulations or the Agreement.
Subpart B also sets forth the procedures and requirements
accrediting entities must follow when setting a fee schedule.
Accrediting entities may only charge fees on a cost-recovery basis, and
the Department must approve the fee schedule. Additionally, an
accrediting entity must make such fee schedules available to the public
upon request and specify the fees to be charged to an applicant in a
contract between the accrediting entity and the applicant.
Several aspects of the proposed regulations relating to fees
deserve particular note. First, the Secretary may require a portion of
the fee to cover the Complaint Registry. Second, applicants will pay a
single fee that will cover both the pre- and post-accreditation/
approval work of any accrediting entity. The fee will be non-refundable
even if an application is denied.
[[Page 54076]]
The Department seeks comments from all parties, especially from
potential accrediting entities, on the regulations governing the
accreditation and approval process. In particular, potential
accrediting entities should comment on the practical issues these
regulations may present for them if they seek to become designated as
accrediting entities.
3. Subpart C--Accreditation and Approval Requirements for the Provision
of Adoption Services
(a) Authorized Providers. Subpart C explains what agencies and
persons are subject to the IAA's accreditation and approval
requirements and under what conditions they may provide adoption
services in Convention cases. Section 201 of the IAA mandates that,
once the Convention enters into force for the United States, no agency
or person may offer or provide ``adoption services,'' as defined Sec.
96.2(e), in connection with a Convention adoption in the United States
unless that agency or person is accredited or temporarily accredited or
approved pursuant to these regulations. If the agency or person is not
accredited, temporarily accredited, or approved, it must (1) be
providing adoption services under the supervision and responsibility of
an accredited agency, temporarily accredited agency, or approved person
(``a supervised provider''); (2) be performing an activity that is
exempted from the accreditation or approval requirements; or (3) or be
operating as a public body.
The requirement to be accredited, temporarily accredited, or
approved applies regardless of the number of adoption cases for which
the agency or person is offering or providing ``adoption services.''
The provision of an adoption service in one Convention adoption case is
sufficient to trigger this requirement. Conversely, if an agency or
person does not provide ``adoption services'' in any cases subject to
the Convention, this requirement does not apply. If an agency or person
is providing adoption services in bothConvention and non-Convention
cases, the requirement applies.
It is critical to note that the requirements pertaining to
accreditation and approval are triggered when an agency or person
offers or provides any single one of the six services listed in the
definition of ``adoption services.'' (Pub. L. 106-279, section 3(3)).
The IAA's definition, which is adopted by these regulations, lists six
core, but limited functions, that it calls ``adoption services.'' (Pub.
L. 106-279, section 3(3)). Services that are not listed in the
definition given in Sec. 96.2(e) of these regulations are not
considered ``adoption services'' for the purpose of the IAA and
therefore do not trigger the requirement that the agency or person
providing the service be accredited, temporarily accredited, or
approved or be operating under the supervision and responsibility of an
accredited agency, temporarily accredited agency, or approved person.
Therefore, for example, if an agency or person provides only services
not listed in the definition of adoption services (such as post-
placement counseling, a medical evaluation of a child's records or of a
video of the child provided by the child's country of residence, pre-
adoptive parent training courses or meetings, or post-adoption services
for children whose adoptions were dissolved), that agency or person is
not required to be accredited, temporarily accredited, or approved or
to operate under the supervision and responsibility of an accredited
agency, temporarily accredited agency or approved person. Conversely,
if a service provided by an agency or person is listed as any one of
the six adoption services in the definition of adoption services, the
agency or person must be accredited, temporarily accredited, or
approved or it must act under the supervision and responsibility of an
accredited agency, temporarily accredited agency, or approved person
(unless it is a public body or is only performing an exempted service).
For example, securing necessary consents to termination of parental
rights and to adoption is one of the defined six adoption services.
Thus, a lawyer, who may provide this service now as a legal service,
may not do so in Convention cases unless he or she is approved or is
doing so as part of an accredited agency, temporarily accredited
agency, or an approved person or is acting under the supervision and
responsibility of an accredited agency, temporarily accredited agency,
or approved person.
When determining whether an activity is included in the definition
of adoption services, the reader must pay close attention to the
language used in the list of services. For example, post-placement
monitoring, but not post-placement counseling, is included in the
definition of ``adoption services.'' Therefore, the former triggers the
requirement, but the latter does not. Similarly, one listed adoption
service is ``identifying and arranging an adoption.'' An agency or
person that both identifies a child for adoption and arranges the
adoption would be covered by the requirement. On the other hand, a
magazine or TV show or newsletter, which simply posts pictures and
information about children waiting for adoptive placements on behalf of
other agencies, persons, or public bodies, would not be covered. These
media companies are not covered because they are only communicating
information on a child awaiting placement, rather than both identifying
a child for adoption and arranging the adoption.
Although some of the preliminary public input asserted that
Congress did not intend for each single, named adoption service to
trigger the accreditation, approval, or supervision requirement, the
Department has rejected such an interpretation of the IAA. Instead, the
Department interprets the IAA as mandating that the provision of any
one of these six adoption services triggers the requirement that an
agency or person be accredited, temporarily accredited, or approved or
operate under the supervision and responsibility of an accredited
agency, temporarily accredited agency, or approved person (unless it is
a public body or is only performing an exempted service). The
alternative reading--that the requirement is triggered only when an
agency or person actually provides all six services--would nullify the
protective intention, capacity, and effect of the IAA. Such a reading
would permit an agency or person to decline to provide one of the
enumerated adoption services and thereby evade the requirement.
(b) Accreditation and Approval Versus Acting as a Supervised
Provider. Although the IAA is clear that an agency or person wishing to
offer or provide adoption services in cases subject to the Convention
must be accredited, temporarily accredited, or approved or operate
under the supervision of an accredited agency, temporarily accredited
agency, or approved person (unless it is a public body or providing
only an exempted service), it does not provide guidance on how to
choose between these options. The Department understands that each
agency or person will face a difficult choice in making this decision
and is not able to provide specific advice on what is best for each
individual agency or person. However, the Department believes it is
helpful to underscore the ramifications of choosing between being
accredited/approved and being a supervised provider. First, agencies
and persons that do not become accredited, temporarily accredited, or
approved must be supervised by an accredited agency, temporarily
accredited agency, or approved person (unless they are a public body or
are providing only an exempted service in the case). Second,
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agencies and persons that do not become accredited, temporarily
accredited, or approved, and instead act as a supervised provider, are
not subject to all of the standards in subpart F. They are, however,
subject to the standards contained in Sec. 96.45 (supervised providers
in the United States) or Sec. 96.46 (supervised providers in other
Convention countries) of subpart F. Third, agencies and persons that do
not become accredited, temporarily accredited, or approved cannot
operate as the primary provider in a Convention case.
(c) Primary Providers. These regulations establish as a principle
of accreditation and approval that an accredited agency, temporarily
accredited agency, or an approved person must identify itself as the
``primary provider'' in each Convention case. The primary provider must
be an accredited agency, temporarily accredited agency, or approved
person. It cannot be a supervised provider. If there is only one
accredited agency, temporarily accredited agency, or approved person
among the agencies and persons providing the six adoption services (as
defined), then that one inherently must act as the primary provider.
Where more than one accredited agency, temporarily accredited agency,
or approved person is providing services in the same Convention case,
and therefore more than one agency or person is eligible to act as the
primary provider, the agency or person performing the tasks listed in
Sec. 96.14(a)(1)-(4) must be designated as the primary provider.
Whether the accredited or temporarily accredited agency or the approved
person is providing all of the adoption services itself or is using
supervised providers or other providers to provide the six adoption
services, the regulations also establish, as a principle of
accreditation and approval, that all six of the services listed in the
definition of adoption services must be provided in each Convention
adoption case.
The primary provider under the accreditation and approval standards
has two principal responsibilities. First, the primary provider is
responsible for ensuring that all six of the adoption services listed
in the definition of ``adoption services'' are provided in each
Convention case. Second, the primary provider is responsible for
supervising non-accredited agencies and non-approved persons that are
providing adoption services (as defined) in the case. The requirements
and parameters for providing supervision can be found in Sec. Sec.
96.45 and 96.46.
The primary provider principle is appropriate and necessary for a
number of reasons. Although the IAA is clear that agencies and persons
providing adoption services in a Convention case must either be
accredited, temporarily accredited, or approved or supervised, it is
silent on how supervision will be provided and how providers in the
same Convention case must coordinate adoption service delivery. These
regulations provide that framework through the creation of the primary
provider requirement incorporated into the accreditation and approval
standards as appropriate. Also, to provide clarity in response to the
numerous inquiries about the requirement during the preliminary public
input phase, the primary provider principle appears in the regulations
as a freestanding provision in Sec. 96.14, which is cross-referenced
to the definition of primary provider in Sec. 96.2(cc).
The Department is aware that this principle both reflects and
changes current practice. This scheme allows agencies and persons,
especially small agencies and persons, to continue to form the network
of providers needed to complete each individual intercountry adoption.
The Department does not want to interfere unnecessarily with how a
network is formed to provide services in each particular adoption case.
The Department understands that agencies with an adoption program in
one country must be able to connect with potentially 50+ other agencies
or persons because the prospective adoptive parent(s) to be matched
with a child could be in any one of the 50 States or in other U.S.
jurisdictions. Conversely, prospective adoptive parent(s) who seek to
adopt a particular child identified as in need of an adoptive placement
must be able to connect with an agency or person (which may not be
located in the State where the prospective adoptive parent(s) resides)
that has an adoption program in the country of origin from which they
wish to adopt a child. In deference to the historically important role
the formation of networks and the use of small agencies and persons
have played in providing services that match children from many
different countries of origin with prospective adoptive parent(s) in
diverse and widely dispersed geographical areas, the Department has
crafted regulations that allow such relationships among agencies or
persons to continue. The Department's goal is to mirror current
practices and to provide regulatory flexibility so that the regulations
do not negatively affect small agencies and persons and other
providers.
The regulations through the accreditation and approval standards do
require, however, an accredited agency, temporarily accredited agency,
or approved person in every case be identified as the primary provider
and formally assume responsibility for supervision of other providers
in the case, both in the United States and overseas, that are not
accredited or approved. Another important provision, in Sec. Sec.
96.45(c) and 96.46(c), is that a primary provider must assume legal
responsibility for the actions of supervised providers, both in the
United States and overseas.
As stated, the Department is not seeking to alter current practice
unnecessarily, particularly where current practice does not give rise
to the types of abuses that the Convention and the IAA seek to curtail.
In this case, however, while the concept of identifying a primary
provider is not an established practice and is not provided for in the
IAA, the Department has concluded that it is necessary to have an
organizing principle to ensure that one agency or person has ultimate
responsibility for proper and effective service provision. Close
coordination is particularly important given the Convention's
requirements that key tasks and determinations be undertaken and made
before the adoption proceeds to ensure that the adoption is in the best
interests of the individual child and in compliance with U.S.
obligations to other Convention countries. The Department also believes
that the primary provider requirement will improve practice without
unduly changing the adoption community's current structure for
providing adoption services. The Department also notes that, consistent
with the IAA, the regulations provide for regulatory flexibility and
enable all agencies or persons, including those that are small, to
choose to become accredited, temporarily accredited, or approved (and
act as a primary provider in a particular case where necessary) or to
be supervised providers.
When acting as the primary provider and using supervised providers,
the accredited agency, temporarily accredited agency, or approved
person must comply with Sec. 96.44 (Acting as Primary Provider), Sec.
96.45 (Using Supervised Providers in the United States), and Sec.
96.46 (Using Supervised Providers in Other Convention Countries) as
well as all of the other standards in subpart F.
The primary provider may work with a variety of entities. In the
United
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States, the primary provider may work with: (1) Other U.S. accredited
agencies, temporarily accredited agencies, and approved persons; (2)
agencies and persons acting under its supervision and responsibility
(U.S. supervised providers); (3) public bodies; and (4) exempted
providers. In another Convention country, the primary provider may work
with: (1) Agencies, persons, or other entities accredited by the other
Convention country; (2) Convention country public authorities or
competent authorities; and (3) agencies, persons, or other entities
acting under the primary provider's supervision and responsibility
(``foreign supervised providers''). As noted, the conditions on the use
of these agencies, persons, or other entities, whether domestic or
foreign, are listed in Sec. Sec. 96.45 and 96.46.
(d) Supervised Providers. Agencies and persons that do not become
accredited or approved may provide adoption services in the United
States in cases subject to the Convention only under the supervision
and responsibility of the accredited agency, temporarily accredited
agency, or approved person that is acting as the primary provider in
the case (unless they are a public body or are only performing an
exempted service). These agencies or persons are called ``supervised
providers.'' Supervised providers are not required to be in substantial
compliance with all of the accreditation and approval standards set
forth in subpart F. However, these regulations do set forth
requirements that apply when a primary provider uses a supervised
provider to provide adoption services in a Convention case. Those
requirements are set forth in Sec. Sec. 96.45 and 96.46.
The following entities are not considered supervised providers: (1)
Agencies or persons that are accredited, temporarily accredited, or
approved in the United States; (2) public bodies; (3) agencies,
persons, or entities accredited by other Convention countries; and (4)
public authorities and competent authorities of other Convention
countries. Such entities are not required to act as supervised
providers; that is, they are not required to act under what in these
regulations is referred to as the supervision and responsibility of the
primary provider. Primary providers are not required to provide
supervision and responsibility for them when they provide adoption
services in a Convention case. Only non-accredited and non-approved
entities that do not fall into one of these categories are considered
supervised providers for the purpose of these regulations. While the
primary provider will have legal responsibility for the work of its
supervised providers, it will not have legal responsibility for the
work of other accredited/approved providers; public bodies; agencies,
persons, or entities accredited by other Convention countries, and
public authorities and competent authorities of other Convention
countries, except to the extent that the primary provider must ensure
that all six adoption services are provided.
(e) Activities That Do Not Require Accreditation, Approval, or
Supervision. The IAA highlights four types of activities that, under
specified circumstances, do not give rise to the requirement that an
agency or person be accredited, temporarily accredited, or approved or
operate under the supervision and responsibility of an accredited
agency, temporarily accredited agency, or approved person. These
activities are: (1) The completion of a home study or child background
study; (2) the provision of child welfare services where the agency or
person is not performing any other adoption service in the case; (3)
the provision of legal services where the agency or person is not
performing any adoption service in the case; or (4) activities
undertaken by prospective adoptive parent(s) acting on their own
behalf.
Home Study or Child Background Study. Even though it is listed as
an adoption service in the IAA definition of adoption services, the
performance of a home study or child background study, by itself, does
not require the agency or person to be accredited, temporarily
accredited, or approved or operate under the supervision and
responsibility of the primary provider, where the agency or person is
not performing any other adoption service (as defined) in the case.
(Pub. L. 106-279, 3(3) and 201(b)(1)). The reader should note that this
exception only applies where the agency or person is not also providing
any other service listed as an adoption service in the case. (Pub. L.
106-279, 201(b)(1)). If the agency or person is performing another
adoption service in addition to the home study or child background
study, it must be accredited, temporarily accredited, or approved or it
must perform the service under the supervision and responsibility of
the primary provider. Agencies or persons that operate under the home
study/child background study exemption are called ``exempted
providers.'' The home study or child background study, as well as any
related reports or updates, from an exempted provider must be approved
by an accredited agency or temporarily accredited agency. This approval
requirement is included to satisfy the requirements of Article 22(5) of
the Convention and section 201(b)(1) of the IAA.
A number of practitioners suggested to Acton Burnell that the
regulations should exempt agencies and persons (both individuals and
for-profits) that perform both home studies and post-placement
monitoring from the requirement to be accredited, temporarily
accredited, or approved or operate under the supervision and
responsibility of the primary provider. The Department does not read
the IAA to permit such an expansion of the exemption. The language of
section 201(b)(1) of the IAA on its face makes clear that providing
another adoption service in addition to the home study or child
background study triggers the requirement. Because post-placement
monitoring (before the legal adoption takes place) is explicitly
defined as an adoption service, those agencies and persons providing
both the home study and post-placement monitoring must either be
accredited, temporarily accredited, or approved, or operate under the
supervision and responsibility of the primary provider.
Child Welfare Services and Legal Services. Child welfare services
and legal services, in accordance with the IAA definitions, are not
``adoption services.'' Therefore, they do not by themselves trigger the
requirement that the agency or person be accredited, temporarily
accredited, or approved or operate under the supervision and
responsibility of the primary provider. The IAA specifically highlights
that the provision of child welfare services and legal services does
not trigger this requirement, so long as the agency or person is not
also performing in the case a service listed as an adoption service.
If the agency or person is also providing an adoption service in
the case, however, it must be accredited, temporarily accredited,
approved, or supervised. Acton Burnell received some comments arguing
that the provision of a home study and a child welfare service in the
same case should not trigger this requirement. The Department
nevertheless reads the IAA as not allowing the child welfare exemption
to apply if any one of the adoption services, including the home study,
in addition to a child welfare service, is provided. Thus, for example,
if an agency provides post-adoption evaluations but does not provide
the home study or any of the other six adoption services, it is not
required to be accredited or supervised. In contrast, if an agency
provides both the home
[[Page 54079]]
study and the post-adoption evaluations, it must be accredited or
supervised because the home study is one of the six listed adoption
services.
For clarity, the definitions section provides a non-exhaustive list
of the types of services that would be considered ``child welfare
services'' or ``legal services.'' This list is simply illustrative, and
meant to highlight those common child welfare and typical legal
services provided in an adoption case and to provide reassurance that
such services do not trigger the requirement that the agency or person
be accredited, temporarily accredited, approved, or supervised. Since
only the six services listed in the definition of adoption services
trigger the requirement to become accredited, temporarily accredited,
or approved, or to operate under the supervision and responsibility of
an accredited, temporarily accredited, or approved provider, it is not
necessary to have an exhaustive list of child welfare or legal
services. If the service being provided is not one of the six listed in
the definition of adoption services, the requirement is not triggered.
Regarding the provision of legal services, some of the preliminary
public input noted that some States do not permit an individual to
provide both legal services and adoption services in a case. These
regulations as proposed are not intended to supplant or alter existing
State law in this respect; therefore, an individual can only provide
both adoption services and legal services in a case where not
prohibited from doing so by the relevant State law. Similarly, some
State authorities asked whether attorneys for public bodies must be
approved persons. Under the proposed regulations, attorneys who are
providing adoption services as part of their employment with public
bodies are not required to be approved or to operate under the
supervision and responsibility of a primary provider.
Prospective Adoptive Parent(s) Acting on Their Own Behalf.
Prospective adoptive parent(s) may act on their own behalf without
becoming approved or operating under the supervision of an accredited
agency, temporarily accredited agency, or approved person, as long as
acting on their own behalf is not prohibited by State law or the law of
the other Convention country involved. More specifically, in a case
where the child is immigrating to the United States, the 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. Conversely, in a case where a child
is emigrating from the United States, the conduct must be permissible
under the laws of the State where the child resides and the laws of the
Convention country in which the prospective adoptive parent(s) reside.
Please note that this provision only provides an exemption from
requirements related to accreditation and approval. The requirements
for intercountry adoption procedures will address how prospective
adoptive parent(s) acting on their own behalf must comply with the
Convention, the provisions of the IAA, and other applicable laws when
completing a Convention adoption.
(f) Public Bodies. Public bodies are not subject to the
accreditation and approval requirements at all, and no provision is
made in this regulation for them to seek accreditation voluntarily.
Therefore, they are not required to be accredited or temporarily
accredited or to operate under the supervision or responsibility of an
accredited agency, temporarily accredited agency, or approved person to
provide adoption services in Convention cases. This exemption for
public bodies reflects the special status accorded public bodies by the
Convention. The abuses that partially motivated creation of the
Convention were attributed in part to malfeasance by private, non-
accredited agencies and persons. Therefore, the Convention did not
contemplate requiring public bodies to undergo the same evaluation and
accreditation process. Also, the Department reads sections 3(14) and
201(a) of the IAA, which provide that persons to be accredited/approved
shall not include an agency of government, as excluding public bodies
from the accreditation and approval requirement.
Public bodies must, however, otherwise comply with the Convention,
the IAA and other applicable law when providing services in Convention
cases. As a non-accredited entity, a public body cannot provide
supervision and responsibility for other entities providing services in
a Convention case. The IAA and the regulations require that the entity
providing supervision and responsibility be an accredited agency,
temporarily accredited agency, or an approved person. Therefore, a
public body must either provide all adoption services in a Convention
case itself, or must use only other public bodies or agencies,
competent authorities, or accredited, temporarily accredited, or
approved entities to provide adoption services in a Convention case.
4. Subpart D--Application Procedures for Accreditation and Approval
Subpart D governs applications for full accreditation or approval.
Full accreditation or approval refers to accreditation or approval
granted when an agency or person is in substantial compliance with the
comprehensive and detailed standards in subpart F. The IAA also permits
small agencies to apply for temporary, as opposed to full,
accreditation that will be for a period of one or two years after the
Convention enters into force for the United States. Except as otherwise
provided, the procedures in subpart D do not apply to applications for
temporary accreditation. The rules on applications and the standards
for temporary accreditation are in subpart N.
Subpart D contains special provisions for agencies and persons that
seek to be accredited or approved by the time the Convention first
enters into force for the United States. Such an agency or person must
apply by what is called the ``transitional application deadline''
(TAD). The TAD will be published in the Federal Register. Since the
Department expects there to be a bottleneck as agencies and persons
apply for initial accreditation and approval, it established the TAD to
manage the initial accreditation/approval phase and to ensure that all
interested agencies and persons are on notice that they must apply by
the TAD if they are seeking to become accredited or approved by the
time the Convention enters into force for the United States. 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 site visits),
it will announce a ``deadline for initial accreditation or approval''
(DIA). The DIA 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.
The regulations provide that the accrediting entity must use its
best efforts to provide a reasonable opportunity for an agency or
person that applied by the TAD to complete the process by the DIA. Only
those agencies and persons that are accredited or approved by the DIA
will be included on the Department's initial list of accredited
agencies and approved persons sent to The Hague Conference Permanent
Bureau. If an agency or person is not on this list once the Convention
enters into force for the United States, it cannot provide
[[Page 54080]]
adoption services in Convention cases until it becomes accredited or
approved, unless it acts under the supervision and responsibility of
the primary provider in the case, or is a public body or exempted
provider. If an agency or person does not comply with this requirement,
it risks being subject to the civil and criminal penalties provided for
in the IAA. If an agency or person is not seeking to be on this first
list, it may submit an application for accreditation and approval at
any time. Regardless of when an agency or person submits its
application, a designated accrediting entity must evaluate the
applicant in a timely fashion.
The regulations also cover how an agency or person selects a
designated accrediting entity. The agency or person must apply to a
designated accrediting entity with jurisdiction over its application.
The Department, after evaluating potential accrediting entities, will
designate selected accrediting entities and define their jurisdiction.
An accrediting entity's jurisdiction may be limited by geography, type
of applicant (agency or person), or other conditions determined by the
Department.
The Department is aware that some agencies and persons have
previously undergone voluntary accreditation. If the entity that
granted such voluntary accreditation is eventually designated as an
accrediting entity by the Department, any agency or person that has
previously obtained voluntary accreditation from that entity may apply
to that same entity for Convention accreditation under these
regulations, but is not required to do so.\2\ When an applicant applies
for accreditation or approval for the first time under these
regulations, an applicant may apply to any accrediting entity with
jurisdiction over its application. Subsequent applications for
accreditation or approval are subject to different rules that are also
described in subpart D.
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\2\ Throughout this Preamble and regulations, accreditation and
approval refer to accreditation and approval under these
regulations, not to any other system of accreditation. Acton Burnell
received substantial comments in favor of a ``deeming'' mechanism,
which would permit agencies that have already been voluntarily
accredited under a different accreditation system to meet via
``deeming'' these new Federal regulatory standards when the
standards are the same. The Department has decided not to permit
deeming. The standards developed in subpart F differ substantially
from the standards currently used by potential accreditors. The
standards in this proposed regulation focus mainly on intercountry
adoption practices and compliance with the Convention and IAA
requirements rather than general corporate governance practices and
quality assurance systems. These requirements are derived from newly
enacted mandates, and currently used accreditation standards do not
yet have this same focus. Therefore, the Department has concluded
that its regulatory standards differ substantially from other
standards and that the use of a ``deeming'' mechanism would have
little practical utility and not ensure adequate compliance with the
Convention and the IAA. In addition, deeming could give an advantage
in the start-up phase to some providers over others. The Department
welcomes public comment on this issue, especially from potential
accreditors as well as agencies that have been voluntarily
accredited. The Department requests that commenters in favor of
deeming identify any current, non-regulatory standards that are
sufficiently similar to particular standards in subpart F of this
proposed regulation to warrant an automatic finding of compliance on
the ``matching'' standard.
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5. Subpart E--Evaluation of Applicants for Accreditation and Approval
Subpart E governs how accrediting entities must evaluate applicants
for full accreditation or approval. The Department recognizes that
accrediting entities currently use a variety of methods for voluntary
accreditation of all types of social service providers, including
adoption service providers. However, the Department chose in these
regulations to mandate specific requirements so as to ensure that the
processes used to scrutinize agencies and persons for compliance are
fair and can be uniformly applied to all agencies and persons.
For example, the regulations require accrediting entities to do the
following: (1) Use at least two qualified evaluators to assess an
agency or person; (2) review all documentation submitted; (3) verify
the information submitted; and (4) conduct appropriate site visits. The
regulations also describe how site visits must be conducted, and
include a requirement that at least one evaluator participate in the
site visit. Before making its final decision, the accrediting entity
may, in its discretion, advise an agency or person of any deficiencies
that could prevent accreditation or approval. The accrediting entity
may defer a final decision to allow the agency or person to correct the
deficiencies.
The regulations also discuss how the accrediting entity must
protect the information and documents disclosed to it at any stage of
the accreditation and approval process. Specifically, the regulations
address the protection of information from unauthorized disclosure,
proper use of the information received, maintenance of accurate
records, and safeguards for protecting identifying information from
unauthorized use and disclosure. The regulations also require that the
accrediting entity's officers, employees, contractors, and evaluators
who have access to an agency's or person's documents or information
sign a non-disclosure agreement.
(a) Substantial Compliance. Section 96.27(a) mandates substantial
compliance, not absolute compliance, with the standards in subpart F.
There was considerable disagreement in the adoption community about
which of the standards in subpart F--if any--should be made absolute.
Some advocated that all the standards should be subject to strict
compliance; others advocated that particular standards, but not others,
should be subject to strict compliance. The Department believes that
the use of an accreditation system based on substantial compliance and
the opportunity to improve, rather than a strict licensing scheme, to
regulate the agencies and persons is more consistent with the
regulatory approach contemplated by the IAA. Thus, after careful
deliberation, the Department has decided to mandate substantial
compliance with all of the standards.
There are three additional reasons for the decision to use
substantial compliance as the standard. First, in the absence of
consensus among the experts, it was impossible to delineate which
individual requirements should always be mandatory. Second, a number of
these standards address a wide range of ethical and sound social work
practices, rather than just Convention or IAA requirements. One-time
failures to comply with such social work practice standards, which
inherently are evolving, though unfortunate, should not form the sole
basis for the imposition of the severe types of adverse action such as
cancellation of accreditation or approval. Third, the Department
considers it essential to give sufficient discretion to accrediting
entities, which will be selected based on their expertise, to decide
when non-compliance warrants denial of accreditation or approval or
adverse action.
The Department recognizes that adherence to certain key individual
standards is critical to protecting children and families and
comporting with the requirements of the Convention and the IAA.
Therefore, the regulations require that the standards or elements of
certain standards will be assigned points by the accrediting entity.
The accrediting entities will develop a scoring or weighting system
that determines how a calculation is completed to determine if an
agency or person is in substantial compliance with the standards. The
Department has considered but rejected the idea of defining the scoring
methods and listing the weighting criteria in this proposed rule.
Instead, the Department intends to oversee the designated accrediting
entities so that they may arrive at a
[[Page 54081]]
uniform and consistent method of assigning points and weighting
different standards. The Department and the accrediting entities will
consult on a point system and methods to weight the standards to ensure
that certain standards are given greater weight than others as
appropriate. The weighting of standards is typical of and consistent
with current accreditation practice. The Department, however, did not
think it was advisable to begin the process of having any accrediting
entities ascribe points and weight the standards in subpart F when both
the number and content of the standards may change subject to comments
provided during the public comment period. Also, because the point
system and the weighting criteria will be developed by the accrediting
entities as internal procedures, the criteria will not be subject to
the notice and comment rulemaking. Applicants will be advised of the
system, however, when provided with application materials.
(b) Consideration of Capacity or Actual Performance. The Department
anticipates that when evaluating an agency or person for initial
accreditation or approval, the accrediting entity may not be able to
evaluate actual compliance because the agency or person will not yet
have had an opportunity to comply with the stated requirements.
Therefore, the regulations permit the accrediting entity, when
evaluating an initial application for accreditation or approval, to
evaluate the capacity of the agency or person to achieve substantial
compliance with the standards rather than the agency's or person's
actual performance when evidence of actual performance is not yet
available. Once the agency or person has been accredited or approved,
however, the accrediting entity generally will, for the purposes of
reapplication after adverse action, renewal, monitoring and
enforcement, consider the agency's or person's actual performance when
deciding whether it is in substantial compliance with the standards. In
special, limited circumstances it may be necessary for the accrediting
entity to continue to evaluate capacity, but in the absence of such
special circumstances the accrediting entity will evaluate actual
performance.
(c) Use of IAA Standards. Accrediting entities may use only the
standards in subpart F. Accrediting entities may not impose standards
that are not included in these regulations. Although the accrediting
entity is limited to the standards in subpart F when determining
whether to grant or maintain accreditation or approval, there are three
instances when other considerations may be taken into account. First,
if an agency or person has been previously denied accreditation or
approval under these regulations, has withdrawn its application in
anticipation of denial, has had its temporary accreditation withdrawn,
or is reapplying for accreditation or approval after certain adverse
actions, the accrediting entity may take the circumstances of such
actions into account when making its determination. The Department
considers such past behavior relevant in accreditation or approval
decisions. Second, if any agency or person that has an ownership or
control interest in the applicant has been previously debarred, the
accrediting entity may take the circumstances of the debarment into
consideration when making its determination. The purpose of this
provision is to prevent an agency or person that has been debarred from
bypassing the debarment by merely reconstituting itself as another
entity. Finally, a failure to provide information to the accrediting
entity may be grounds for denial or other adverse action.
6. Subpart F--Standards for Convention Accreditation and Approval
(a) Overview of Standards. Subpart F contains the standards for
accrediting and approving agencies and persons. The standards include
the basic requirements necessary to comply with the IAA and the
Convention, detailed standards addressing issues of particular concern
to the adoption community, and generally recognized standards for sound
and ethical practice in the intercountry adoption field.
The standards contained in subpart F are applicable at all stages
of accreditation or approval. Specifically, the accrediting entity will
use these standards: (1) When an agency or person applies for
accreditation or approval; (2) during monitoring by the accrediting
entity; (3) at the time renewal of accreditation or approval is sought;
(4) during the investigation of complaints lodged against the agency or
person; and (5) when the accrediting entity or the Department
contemplates taking adverse action against the agency or person. If at
any time an agency or person is believed to be out of substantial
compliance with these standards, the client or other interested party
may file a complaint. The accrediting entity will investigate the
complaint in accordance with subpart J and, if non-compliance is
established, take adverse action as appropriate in accordance with
subpart K.
The standards in subpart F do not apply to agencies seeking
temporary accreditation, except as otherwise provided in subpart N
(Procedures and Standards Relating to Temporary Accreditation). Subpart
N contains separate performance standards for small entities that wish
to become temporarily accredited agencies under the IAA.
(b) Review of Certain Specific Standards. The Department does not
believe it is necessary in this Preamble to review the contents of
every standard in subpart F. However, there are a number of
requirements that are specifically highlighted because the preliminary
public input on such standards has been conflicting. For those
standards, the Department believes that further explanation is
warranted.
Section 96.33: Budget, Audit, Insurance, and Risk Assessment
Requirements: The appropriate treatment of liability and insurance is
one of the issues that elicited a range of intense comments during the
development of the proposed regulation. Concerns centered in particular
on the ability of an aggrieved party to seek redress from a single
agency or person in the United States that would be responsible for the
adoption. Input from congressional staff called for the regulations to
assign civil liability to the accredited/approved provider for the acts
of its U.S. supervised providers and its foreign supervised providers.
To address these concerns, the regulations mandate in Sec. Sec.
96.45(c), and Sec. 96.46(c) that any accredited agency, temporarily
accredited agency, or approved person acting as the primary provider
assume legal responsibility vis-a-vis the adoptive parents for the acts
of other agencies and persons in the United States or abroad acting
under its supervision and responsibility, in addition to its own acts
in connection with an adoption. The intent of this provision is to give
the adoptive parents legal recourse against a single entity so far as
is reasonable. The primary provider may, however, seek indemnification
from its supervised providers for any liability it incurs vis-a-vis the
adoptive parent. (No effort is made, however, to make the primary
provider responsible for the acts of other accredited agencies or
approved persons with which it handles an adoption.)
The Department recognizes that this provision may raise the costs
of liability insurance for accredited agencies and approved persons and
have an effect on civil litigation. The Department is satisfied,
however, that it is consistent with the intent and overall purpose of
[[Page 54082]]
the IAA. As noted, the Department has concluded that there must be a
single ``primary provider'' for each Convention adoption. Thus, under
these regulations, if a supervised provider violates the standards, the
primary provider's accreditation, temporary accreditation, or approval
may be in jeopardy. It seems also appropriate that, in tort, contract,
or similar legal action in which the performance of an adoption service
provider is challenged, the primary provider should assume legal
responsibility for the acts of the supervised providers (domestic and
foreign) that it has chosen to work with. The Department believes that
the primary provider will do a better job of supervising if it is
deemed automatically to be legally responsible for the acts of its
supervised providers in both the accreditation and approval context and
with respect to tort, contract, and similar civil claims.
Through Acton Burnell and others, the Department has heard concerns
that agencies and persons carry sufficient liability insurance to cover
the risks of providing adoption services. The regulations require the
agency or person to have a professional assessment of the risks it
assumes, including the risk of assuming legal responsibility for its
supervised providers in the United States and abroad, and to carry an
amount of insurance that is reasonably related to that risk but in no
event less than one million dollars per occurrence or claim. In
addition, to protect against financial irregularities, the Chief
Executive Officer, Chief Financial Officer, and all other officers and
employees who have direct responsibility for financial transactions or
financial management of the agency or person must be bonded.
The Department recognizes that these standards allocating legal
risk, mandating insurance coverage, and setting the floor amount of one
million dollars for insurance coverage are sensitive and will require
changes in current practice. The Department welcomes public comment,
including from insurance experts, actuaries, associations, and agencies
and persons, on these issues. Agencies and persons may specifically
wish to encourage their insurance providers to comment on these
proposed regulations.
The Department also wishes to call special attention to the
standard relating to cash reserves in Sec. 96.33(e). A standard of a
reserve of three months is proposed. Commenters may wish to address
whether this period is too long or too short.
Section 96.35: Suitability of Agencies and Persons to Provide
Adoption Services Consistent with the Convention: An agency or person
must demonstrate to the accrediting entity that it provides adoption
services ethically and in accordance with the Convention's goals of
ensuring that intercountry adoptions take place in the best interests
of children and preventing the abduction, exploitation, sale of, or
trafficking in children. To permit the accrediting entity to evaluate
the suitability of an agency or person for accreditation or approval,
the agency or person must disclose the specified information about
itself and about its directors, officers, and employees. The Department
believes that it is critical for the accrediting entity to have full
information about the applicant before making a final decision. Because
suitability is a matter of ongoing concern, the agency or person must
also update the information required by this section within thirty
business days of learning of a change in the information.
The standards do not require automatic disqualification of an
agency or person for any particular behavior, activity, or event.
Instead, consistent with the accreditation scheme employed, the
standards give the accrediting entity the discretion and flexibility to
examine the factual circumstances underlying the conduct and to
determine whether accreditation or approval is appropriate. Where an
agency or person has committed an egregious or illegal act, or has
engaged in a pattern of behavior that is inconsistent with protecting
the best interests of children, accreditation or approval is likely to
be inappropriate. Yet it is impossible for the Department to list every
type of non-conforming or unethical behavior that would fall into this
category. Therefore, in addition to specific disclosures, the standards
mandate disclosure of any other businesses or activities currently
carried out by the agency or person, affiliate organizations, or any
entity in which it has an ownership or control interest that are
inconsistent with the principles of the Convention. These principles
include the proposition that in no instance is the abduction, sale,
exploitation, or trafficking of children permissible. Such activities
would include, for example, distributing pornography or operating a Web
site that contains pornography, regardless of whether such activity is
legal or not, and trafficking in individuals, either into or out of the
United States, for pernicious purposes.
Section 96.37: Education and Experience Requirements for Social
Service Personnel: This section sets forth the required qualifications
for individuals performing adoption-related social service functions.
The qualifications are divided into categories that correspond to the
individual's function, role, and position. These standards
substantially upgrade the requirements for social workers, both
supervisors and non-supervisors, performing certain tasks by requiring
them in many cases to have a master's degree from an accredited program
of social work education or to meet other educational or work
experience requirements. The required qualifications for individuals
performing home studies or child background studies differ from those
for individuals performing other social service functions. All
individuals performing home studies or child background studies are
subject to the requirements in Sec. 96.37, unless they are exempt
pursuant to Sec. 96.13. The standards exceed the current
qualifications required for home study preparers under the regulations
for the INA (see 8 CFR 204.3(b) (home study preparer)). Specifically,
the new rules as proposed require individuals performing home studies
or child background studies to have a minimum of a master's degree in
social work education.
Section 96.40: Fee Policies and Procedures: The standards in this
section address fee practices. The preliminary public comment included
complaints about the charging of large fees, last-minute fee changes
that were not disclosed to clients in advance and practices that
require prospective adoptive parent(s) to travel abroad with large
amounts of cash to pay for adoption services to be rendered in the
country of origin. In addition, frustrations were expressed with
differences in the ways that fees are categorized, which makes it
impossible for clients to compare fees for similar services.
The standards impose a number of requirements to address these
concerns. In particular, they require prior disclosure of fees and
provide guidelines for how and when fees may be charged. These
standards help to ensure that agencies and persons disclose how fees
are disbursed. There are also specific provisions governing when and
how additional fees may be assessed beyond the original fee, and how
unexpended fees must be refunded. The standards also require the agency
or person to have a mechanism in place for transferring funds to other
Convention countries whenever the financial institutions of that
country so permit so that direct cash transactions by prospective
adoptive parent(s) are
[[Page 54083]]
unnecessary. The Department is aware that many of the fees charged by
public authorities in other Convention countries--for example, for
passports, birth certificates, adoption certificates, or court
documents--must be paid in currency. Therefore, these regulations
strike a balance that takes into consideration the reliability and
feasibility of using non-cash transactions in a particular Convention
country, but requires agencies and persons to use available methods so
that the need for direct cash transactions by prospective adoptive
parent(s) is minimized.
Section 96.41: Procedures for Responding to Complaints and
Improving Service Delivery: The Department recognizes that the handling
of complaints against agencies and persons is one of the areas of
greatest concern in the adoption community. To address this concern,
the regulations provide for the Department to establish a Complaint
Registry that may be funded in whole or in part by accreditation and
approval fees or fees paid to the Department. The Complaint Registry's
responsibilities and functions are described in subpart J of these
regulations. In addition, the standards address requirements for the
handling of complaints by agencies and persons. In particular, the
standards require agencies and persons to have written complaint
policies and procedures that are provided to clients at the time the
adoption contract is signed. The procedures must permit any birth
parent, prospective adoptive parent, or adoptee to lodge a complaint
about services and activities that he or she believes are inconsistent
with the Convention, the IAA, or the regulations implementing the IAA.
The regulations also set forth time frames for responding to
complaints. Some prospective adoptive parent(s) also indicated that
fear of retaliation or other adverse action hampered their ability to
make complaints about wrongful behavior. Thus, the regulations also
explicitly prohibit retaliatory action or other conduct that would
discourage clients from registering complaints.
Section 96.42: Retention, Preservation, and Disclosure of Adoption
Records: This section addresses preservation of and access to adoption
records. Adoption records are defined as the records held by agencies
or persons or State public bodies and do not include records held by
Federal government agencies. Records held by Federal government
agencies are called Convention records, and will be addressed in a
separate regulation to be published in part 98 of title 22 of the CFR.
The proposed rule for part 98 is also published in a separate
rulemaking document in today's Federal Register.
The Department recognizes the wide range of views on access to
records sealed in accordance with State law. Both the Senate and House
committee reports on the IAA contain almost identical language stating
that there was no intent to change current State law governing access
to birth parent identifying information in adoption records. (See
Report of the Senate Committee on Foreign Relations, S. Rep. No. 106-
276 at 11 (2000); Report of the House Committee on International
Relations, H.R. Rep. No. 106-691 at 30 (2000)). Moreover, section
401(c) of the IAA expressly states that access to adoption records that
are not Convention records will be governed by applicable State law.
Therefore, the standards in this section mirror the IAA's neutral
position on access to adoption records and simply provide that agencies
and persons follow applicable State law regarding access to identifying
information.
On the issue of the preservation of adoption records, the
Convention requires that a child's social and medical information be
preserved, but it does not set a specific retention period. In response
to the Convention's requirements, the regulations require that an
agency or person preserve adoption records, including personal effects,
for any period of time required by applicable State law. The Department
seeks comment on the adoption records preservation standard. Commenters
should address the issue of whether or not a uniform Federal time frame
for the retention of adoption records should be included in the
standards. Commenters should provide suggestions on what the adoption
records preservation standard should be and provide information on the
costs and burden of maintaining adoption records, including personal
items, for a period of time that they believe would be appropriate.
Section 96.43: Case Tracking, Data Management, and Reporting: This
section addresses the IAA's extensive reporting requirements. The
Department is required to report to Congress all of the information
contained in this section. Some of this information, as indicated, is
required for both incoming and outgoing cases, and for both Convention
and non-Convention cases. There also is a provision requiring agencies
and persons to provide information directly to the Department about
outgoing cases to non-Convention countries, even though those cases are
not subject to the Convention.
Sections 96.45 and 96.46: Using Supervised Providers in the United
States; Using Supervised Providers in Other Convention Countries: The
standards in Sec. Sec. 96.45 and 96.46 apply when a primary provider
is using a supervised provider to provide services in a Convention
case. As is noted earlier, such supervised providers are not required
to be accredited or approved, and hence need not be in substantial
compliance with all of the accreditation and approval standards set
forth in subpart F. However, Sec. Sec. 96.45 and 96.46 do set forth
specific procedures and requirements that must be followed when a
primary provider uses a supervised provider. Non-compliance by the
supervised provider with these requirements may jeopardize the
accreditation or approval status of the primary provider.
As is noted above, if public bodies, public authorities, competent
authorities, or agencies, persons, or other entities accredited or
approved by the United States or another Convention country are used to
provide services, the primary provider is not required to comply with
Sec. Sec. 96.45 and 96.46 for those entities or individuals. The IAA
does not require such supervision and primary providers cannot
practically supervise these entities, especially those in another
Convention country. For this reason, these regulations do not make the
primary provider responsible for the acts of these entities for the
purposes of accreditation or approval or legal responsibility to the
client. This distinction is particularly important where the primary
provider is required by the other Convention country to use its public
authorities, competent authorities, or accredited bodies. Because the
primary provider has no control over these entities, it is appropriate
to exclude them from the supervision and responsibility rubric.
Problems originating from public or competent authorities or from
bodies accredited by the other Convention countries may, of course, be
addressed by the Department, as U.S. Central Authority, with other
Central Authorities as appropriate.
On the other hand, supervised providers, while not subject to all
of the accreditation and approval standards listed in subpart F,
nevertheless must provide adoption services in Convention cases in a
manner that is consistent with the principles of the Convention, the
IAA, and sound and ethical practice. The Department has heard
significant concerns about the behavior of individuals and
organizations used by adoption service providers to assist them in
providing
[[Page 54084]]
services. The concerns were especially acute about service providers in
other countries.
The Department shares these concerns but at the same time
recognizes that the ability to work with providers in other countries
to obtain services that must be rendered abroad is a critical and
essential part of intercountry adoption practice. Moreover, many such
providers do provide sound and ethical services. The Department does
not wish to render it overly difficult to work with these providers, or
unnecessarily to penalize those providers that are not the object of
these complaints. Furthermore, the Department recognizes that there are
limits to its ability to monitor and control the practice of entities
abroad not governed by our laws.
To address these issues, the regulations set forth specific
requirements governing the use of supervised providers in Convention
cases. The primary provider may work with one or more other entities
that will act under its supervision and responsibility; however, such
work is conditioned on compliance with the requirements in Sec. 96.45
(Using Supervised Providers in the United States) and Sec. 96.46
(Using Supervised Providers in Other Convention Countries). This
Preamble does not review all of the requirements contained in these
sections, but generally the primary provider must: (1) Screen
supervised providers to ensure that they have a general understanding
of the Convention and do not engage in practices inconsistent with its
principles and requirements; (2) before entering into an agreement for
the provision of adoption services, obtain information about the
supervised provider's history of practice and suitability to provide
services consonant with the Convention; and (3) enter into a written
agreement that binds the supervised provider to adhere to a range of
specified performance standards.
The requirements on supervised providers are bifurcated into two
sections--Sec. 96.45 and Sec. 96.46--so that the standards for
foreign supervised providers can be tailored to address specific
concerns. This bifurcation is useful for three reasons. First, some of
the requirements for domestic supervised providers simply are not
apposite for service providers operating in other countries and had to
be modified accordingly. Second, the requirements for foreign
supervised providers include specific provisions for the types of
services those entities are most likely to provide (for example, in
cases of immigrating children, the provision of medical records).
Third, and most important, the requirements for foreign supervised
providers reflect the heightened concern expressed by some members of
the adoption community about problematic practices by foreign
providers.
The primary provider is responsible for ensuring that the
supervised providers with whom it chooses to work comply with these
requirements. Failure to do so may be grounds for adverse action
against the primary provider and may jeopardize its accreditation or
approval status.
Sections 96.47 and 96.53: Preparation of Home Studies in Incoming
Cases; Background Studies on the Child and Consents in Outgoing Cases:
These sections address the home study and child background study
requirements. The Department wishes to highlight that all U.S. home
studies and child background studies that are not prepared in the first
instance by an accredited agency or temporarily accredited agency must
be reviewed and approved by an accredited agency or temporarily
accredited agency. It is not sufficient for the home study or child
background study to be reviewed and approved by an approved person.
Home studies or child background studies done by an exempted provider
or by an approved person must be reviewed and approved by an accredited
agency or temporarily accredited agency.
The reason that it is not sufficient for an approved person to
approve the home study or child background study is that Article 22(5)
of the Convention requires the home study or child background study to
be prepared in every case by or under the responsibility of the Central
Authority, public authorities, or by an accredited body. The Department
recognizes that the IAA only requires that a home study or child
background study prepared by an exempted provider be approved by an
accredited agency or temporarily accredited agency. However, the
Convention requires that in every case the preparation of the home
study or child background study be performed or supervised by an
accredited agency. Therefore, the regulations require all home studies
or child background studies to be prepared or approved by an accredited
agency or temporarily accredited agency.
Section 96.49: Provision of Medical and Social Information in
Incoming Cases: The Department recognizes that the provision of
accurate medical records on the child is one of the most important
issues facing birth parents, prospective adoptive parent(s) and
adoptees and that current practice has often been unsatisfactory. The
Department in this standard tried to balance the need for more detailed
and accurate medical information on a particular child against the
difficulties inherent in obtaining such information in many foreign
countries.
The Department considered the following issues: First, the
Department is aware that in many, if not most, Convention countries,
given current practices and the limited resources of the public
authorities or competent authorities, it is extremely difficult for
such authorities to obtain all information that may exist on a child
prior to an adoption. Second, some members of the public pointed out
that, under Article 16 of the Convention, responsibility for preparing
the child background study, which must include the medical history of
the child, including any special needs of the child, is with the
Central Authority of the child's country of origin (or its accredited
bodies), rather than with the receiving country. Third, the Department
is aware that, because the health care provided to many children in
public care has historically been inadequate, medical care may not have
been provided to a particular child, or care may have been provided but
the medical records simply may not have been created or may not provide
the same types of information available in the United States. Fourth,
the Department is concerned that any impractical standards in this area
will negatively affect the adoption of children with medical problems
or special needs because agencies and persons will be less likely to
assume the risks of placing such children absent extensive information,
which typically is difficult to obtain. On the other hand, the
Department received input that agencies and persons: (1) Do not
aggressively push the public authorities or competent authorities in
the child's country of origin to produce what records they do have; or
(2) withhold medical information that they do obtain.
Resolving all these issues in a way that would meet the concerns of
the diverse members of the adoption community was not possible. The
Department has thus written several compromises into the regulations.
The regulations require that all available medical information be
forwarded in a timely fashion. In particular, agencies and persons must
make all reasonable efforts to provide all of the listed information
and, if such information cannot be provided, document all efforts made
to obtain the information and explain why it is not obtainable. The
standards also require the provision of contact information for the
physician in
[[Page 54085]]
the country of origin who provided the information. The standards also
mandate that, when a summary of a medical record is sent, the agency or
person must ask the public or competent authority or other entity that
provided the summary to produce a copy of the original medical record
on which the summary is based. Additionally, the standards set time
requirements for the advance provision of medical information to
prospective adoptive parent(s). In accordance with the IAA, the child's
medical records must be provided at least two weeks before either the
adoption or the date on which the prospective adoptive parent(s)
commence travel to the country of origin for the adoption, whichever is
earlier. Finally, to ensure that prospective adoptive parent(s) have
adequate time to consider such records, the standards require the
agency or person to give the prospective adoptive parent(s) at least
one week--unless there are extenuating circumstances involving the
child's best interests that require a more expedited decision--to
consider the records before a referral can be withdrawn.
(c) Review of Standards Related to Performance of Central Authority
Functions in Incoming and Outgoing Cases. There are a number of
sections that include standards with which agencies and persons must
comply when performing Central Authority functions in either incoming
or outgoing cases. The standards for incoming cases are in Sec. Sec.
96.47 through 96.52. The standards for outgoing cases are in Sec. Sec.
96.53 through 96.55. These standards are intended to ensure that
agencies and persons are evaluated on their performance of those
Convention tasks for which they are responsible. The Department will
not review in the Preamble the content of each of these sections but
wishes to highlight that these sections do not necessarily require the
agency or person to perform the stated function in every case. Some of
these functions may not be required in a case because the function is
being performed by a public body, public authority, or competent
authority, because the function is not applicable in the other
Convention country, or because the factual circumstances of the case
make the function unnecessary. For the purpose of accreditation and
approval, the agency or person must further demonstrate that, when such
functions have been performed, performance has been in accordance with
the standards.
7. Subpart G--Decisions on Applications for Accreditation and Approval
Subpart G addresses how the accrediting entity must make and
communicate decisions about accreditation and approval. Most important,
for agencies or persons who applied by the TAD and who were accredited
or approved by the DIA, the accrediting entity must notify such
agencies and persons in writing on a ``uniform notification date''
(UND) to be set by the Department. The regulations state that the
accrediting entity is not to provide any information on the agency's or
person's status to the public or to the agency or person in question
until the UND.
The Department has adopted this special procedure to ensure that no
particular agency or person in this initial accreditation and approval
phase gains any advantage by being notified earlier than other
applicants. The accrediting entity or entities, which will have a
limited number of evaluators to review applications and documents and
conduct site visits, will necessarily finish evaluating some agencies
or persons early and other agencies or persons closer to the DIA. The
Department seeks to prevent those first qualifying from prematurely
seeking acceptance by other Convention countries or from soliciting
clients by using positive accreditation or approval decisions before
the others have had an opportunity to complete the process during this
start-up phase. The UND is designed to create an equitable starting
point for all agencies and persons that applied by the TAD.
This regulation on communication during the start-up phase does not
prohibit an accrediting entity from communicating with agencies or
persons that applied by the TAD about their status for the sole purpose
of affording them an opportunity to correct deficiencies before the
DIA. Likewise, the Department may obtain interim status information
from the accrediting entity.
Similarly, the regulations deal with the problem that all the
agencies and persons that were accredited or approved during this
start-up phase could come due for renewal at the same time. To avoid an
ever-repeating bottleneck, the regulation provides that the accrediting
entity, in consultation with the Secretary, may accredit or approve
some agencies and persons that applied by the TAD for a period of
three, four, or five years for just the first accreditation or approval
cycle. The Secretary must approve the criteria used to assign
accreditation or approval periods to such agencies or persons.
Also in subpart G, the Department selects a four-year accreditation
or approval period. The IAA provides that the accreditation or approval
period should not be less than three years and not more than five
years. (Pub. L. 106-279, section 203(b)(3)). The Department weighed the
costs and benefits of different periods and chose the period of four
years. There was substantial public concern about the recurring fees
accrediting entities would charge for each renewal cycle and the costs
incurred internally when agencies and persons must make changes in
staffing, training, and other operations to comply with the standards
set by the regulations. There was also public concern that these costs
would be passed along to prospective adoptive parent(s) and could make
the cost of adoption services beyond the reach of many families. On the
other hand, others in the public were eager to ensure that the
compliance of agencies and persons was checked often. Therefore, the
Department selected the four-year cycle to balance the desire to
minimize costs while ensuring sufficiently frequent renewal
evaluations, which will be more extensive than the routine monitoring
required during the accreditation or approval period.
8. Subpart H--Renewal of Accreditation and Approval
Subpart H, which mainly regulates the accrediting entities, governs
the renewal of accreditation or approval. To determine whether to renew
accreditation or approval, the accrediting entity must evaluate the
agency or person to determine if it is in substantial compliance with
the standards in subpart F. Before making a renewal decision, the
accrediting entity in its discretion may 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 process the renewal application in a timely
fashion.
Agencies or persons in good standing may apply for renewal from a
different accrediting entity than the one that handled its prior
application. If an agency or person decides not to seek renewal, it
must notify the accrediting entity and take the necessary steps to
transfer its pending Convention adoption cases and adoption records
appropriately.
[[Page 54086]]
9. Subpart I--Routine Oversight by Accrediting Entities
Subpart I covers routine oversight of accredited agencies and
approved persons. The accrediting entity is expected to take a more
assertive role than is typically the case in the current, purely
voluntary accreditation process in monitoring accredited agencies and
approved persons. For example, the accrediting entity must monitor the
accredited agencies and approved persons at least annually to ensure
that they may maintain their accreditation or approval. The accrediting
entity must also investigate complaints in accordance with subpart J.
As part of its oversight, the accrediting entity may conduct random
site visits and consider any information that becomes available about
the agency's or person's compliance.
10. Subpart J--Oversight Through Review of Complaints
Subpart J sets out extensive procedures for making complaints about
accredited agencies or approved persons. Subpart J was added to the
regulations specifically in response to requests from elements of the
adoption community asking for more avenues to express complaints about
unsatisfactory practices and to reduce the potential for litigation by
giving parties a complaint resolution mechanism. The Department
recognizes that the handling of complaints against agencies and persons
is a major concern to some members of the adoption community. The
Department has heard claims that State-licensing authorities and
accrediting entities do not respond adequately to complaints about
intercountry adoption practices and that current complaint processes
are not sufficiently transparent. The Department has been urged to
establish a mechanism through which the Department would itself,
outside of the IAA-mandated accreditation and approval process,
investigate complaints and penalize unacceptable conduct.
The IAA does not give the Department the authority to set up an
entirely separate enforcement scheme with non-statutory remedies
outside of the accreditation and approval process and use of adverse
action and the IAA civil and criminal penalties. In particular, the IAA
specifically developed a structure under which the Department for the
most part would not directly regulate agencies or persons. Instead, it
relies on private or State-based accrediting entities to regulate
agencies and persons using the standards developed by the Department.
Where those entities do not act, the IAA provides for the Department to
suspend or cancel accreditation or approval by acting directly.
Furthermore, the IAA permits the Department temporarily or permanently
to debar agencies or persons.
These enforcement devices, along with the adverse actions that may
be imposed by the accrediting entity, are sufficient to enforce the
standards without creating a duplicative process. In any event, the
Department could not manage such additional proposed responsibilities
given its primary mission as a foreign affairs agency responsible for
the conduct of diplomatic and consular relations. Moreover, the funding
for such a major, non-statutorily mandated role for the Department
would be uncertain. The Department lacks the capacity to create and
assume such a role in dispute resolution and imposition of remedies.
The Department therefore believes that the enforcement scheme
established in the IAA should be given a chance to work.
The Department does, however, take the community's request for a
complaint process very seriously. Thus, the regulations adopt a
suggestion that the Department establish a complaint service to
receive, screen, and monitor action on complaints. Specifically, the
regulations provide for the establishment of a Complaint Registry,
which may be funded in whole or in part by fees collected by the
accrediting entities or the Department. The Complaint Registry will
record complaints that are not resolved through the internal processes
of the service providers and ensure that they are brought to the
attention of the accrediting entities or others as appropriate. The
accrediting entity is obligated to report the outcome of complaints it
receives to the Complaint Registry so that the Department can monitor
whether and how the accrediting entity is addressing complaints. The
Complaint Registry will also be charged with identifying any patterns
of complaints and other egregious behavior and reporting them as
appropriate for further action. The precise functions of the Complaint
Registry will be detailed in an agreement between the Department and
the Complaint Registry.
The regulations prescribe how the complaint process will work.
Generally, complaining parties, other than Federal agencies, public
bodies, law enforcement or licensing authorities, or foreign Central
Authorities must first file their complaints with the agency or person
providing adoption services and, if the agency or person is a
supervised provider, with the primary provider in the case. If the
complaint is not resolved at this level, then the complaint may be
filed with the Complaint Registry, which will screen and record the
complaints and refer them, as appropriate, to the accrediting entity or
other authorities. Federal agencies, public bodies, law enforcement or
licensing authorities, or foreign Central Authorities may make
complaints directly to the Complaint Registry or the accrediting
entity. The accrediting entity must investigate the complaint and may
conduct a site visit if necessary. If an accrediting entity determines
that the agency or person is out of compliance, it must take adverse
action pursuant to subpart K. When an accrediting entity has completed
its investigation, it must provide written notification to the
complainant, the Complaint Registry, and any other entity that referred
the complaint and include information on the outcome and any actions
taken. The accrediting entity must also establish written procedures to
respond to complaints. Finally, the accrediting entity must refer
certain types of substantiated complaints to the Secretary or
appropriate law enforcement authorities. The regulations prescribe the
standard for determining when to make such referrals.
The Department believes that one critical benefit of these
complaint procedures will be to promote the resolution of complaints
about adoption service providers in a way that will minimize, if not
eliminate, the need for an accrediting entity or the Department to take
adverse action, which may be challenged by an affected agency or person
in Federal court. Thus, the procedures may also have the effect of
reducing litigation.
11. Subpart K--Adverse Action by Accrediting Entities
Subpart K describes how and when an accrediting entity may impose
an adverse action. To enforce the accreditation and approval standards
in subpart F, the IAA gives both designated accrediting entities and
the Department the power to impose adverse actions. An accrediting
entity is authorized to take certain actions against agencies and
persons. The Department has the authority to take some of the same
adverse actions as an accrediting entity, along with the additional
authority to temporarily or permanently debar an agency or person. The
Department's enforcement authorities are addressed in subpart L.
An accrediting entity, whether it is a private, non-profit
accrediting entity or
[[Page 54087]]
a State entity, may impose the following adverse actions: Suspend
accreditation or approval; cancel accreditation or approval; refuse to
renew accreditation or approval; require specific corrective action to
improve deficiencies; or impose other sanctions. Under the IAA, these
specific adverse actions are not subject to any type of administrative
review (i.e., they are not subject to review by the Department), and
the regulations reinforce this point. The IAA does provide, however,
that these specific adverse actions are subject to judicial review in a
United States district court.
Denial of an agency's or person's initial request for accreditation
or approval is not listed as an adverse action in the IAA. (Pub. L.
106-279, 202(3)). Clearly, however, there is the possibility that
agencies and persons will be denied accreditation or approval. Thus,
the regulations permit the accrediting entity to deny accreditation or
approval and make clear that, because denial is not listed as an
adverse action under section 202(3) of the IAA, it is subject to
neither judicial review nor administrative review. This approach is
consistent with the Department's understanding that the IAA
distinguishes, intentionally, between agencies and persons actively
providing Convention adoption services pursuant to accreditation or
approval, on the one hand, and agencies and persons not so engaged.
Adverse actions imposed on the former are, in effect, sanctions,
whereas denial to the latter is not a sanction, but merely a decision
that certain standards have not been met, leaving open the possibility
that they will be met later. The former have interests in preserving
their ability to continue their work, and the IAA protects these
interests by providing judicial review of the enumerated adverse
actions. The IAA does not similarly protect the interests of agencies
and persons in the second category, i.e., those not engaged in
providing Convention adoption services pursuant to accreditation or
approval. To permit agencies and persons judicial review of denial
decisions would significantly add to the costs of accreditation and
approval. Limiting access to judicial review to agencies and persons
that have already been accredited or approved, and that have developed
the resources to provide adoption services, will conserve the
accrediting entity's limited resources. This limitation will enable the
accrediting entity to focus on and monitor the performance of agencies
and persons actually providing adoption services on an ongoing basis
rather than devoting its resources to defending in time-consuming
litigation its decisions to deny accreditation or approval. This
limitation will also reduce the number of cases in this new area of
Federal regulation subject to the jurisdiction of the Federal courts.
The regulations, however, do permit the agency or person to petition
the accrediting entity for reconsideration of the denial, pursuant to
the accrediting entity's internal review procedures.
Denial of a reapplication for accreditation or approval after
cancellation or refusal to renew is treated the same as denial of an
initial application. In both instances, the applicant will not be
currently engaged in providing Convention adoption services pursuant to
accreditation or approval, and thus will not have the kind of interest
in providing continued services that the IAA protects by making
judicial review available. In contrast, an accrediting entity may
cancel or refuse to renew the accreditation or approval of an agency or
person, but the agency or person in that case has an interest in
providing continued services and, under the IAA, may seek judicial
review of the cancellation or the refusal to renew. Altenatively, that
agency or person, instead of seeking judicial review of the
cancellation or refusal to renew, may choose to reapply for
accreditation or approval. If the accrediting entity denies that
reapplication for accreditation or approval, the denial is not subject
to administrative or judicial review. Again, the regulations permit the
agency or person to petition the accrediting entity for reconsideration
of the denial, pursuant to the accrediting entity's internal review
procedures.
In summary, all adverse actions (suspension, cancellation, refusal
to renew, corrective action, or other sanction) are subject to judicial
review, consistent with the fact that all affect an accredited agency
or approved person with an interest in continuing the provision of
Convention adoption services pursuant to previously granted
accreditation or approval. Prior to seeking judicial review and
consistent with the normal requirements for judicial review under the
APA, the regulations require agencies and persons to exhaust non-
judicial remedies before the accrediting entity. Specifically, the
agency or person must petition the accrediting entity to terminate the
adverse action on the grounds that the deficiencies necessitating the
adverse action have been corrected. If the deficiencies that led to the
adverse action have been corrected, the accrediting entity may
terminate the adverse action. It is only when the accrediting entity
does not terminate the adverse action that the agency or person may
seek judicial review.
If an agency or person challenges cancellation of or refusal to
renew its accreditation or approval in Federal court, its only remedy
if the court denies its petition is to reapply to an accrediting entity
for accreditation or approval. Permission to reapply, however, is not
automatic. The accrediting entity may grant such permission only if the
agency or person demonstrates that the specific deficiencies that led
to the cancellation or refusal to renew have been corrected. Any denial
of these re-applications, as noted previously, is not subject to
judicial review.
If an agency or person is challenging the imposition of a
suspension, corrective action, or other sanction by an accrediting
entity in Federal court, it has no avenue for reversing such action
other than review by a United States district court, which must review
any challenged adverse actions in accordance with the APA, 5 U.S.C.
706. For purposes of judicial review, the accrediting entity will be
treated as a Federal agency as defined in 5 U.S.C. 701.
12. Subpart L--Oversight of Accredited Agencies and Approved Persons by
the Secretary
The Department may impose the following adverse actions:
suspension, cancellation, or temporary or permanent debarment. Under
the IAA, these specific adverse actions are not subject to any type of
administrative review by the Department or otherwise, and the
regulations reinforce this point. Under the IAA, these final adverse
actions are subject to judicial review in a United States district
court.
The IAA administrative enforcement scheme provides, in section
204(b)(1) of the IAA, that the Department may suspend or cancel
accreditation or approval when the accrediting entity has failed or
refused to act. The IAA does not give the Secretary a role in reviewing
or changing the adverse action decisions or denial actions actually
imposed by the accrediting entity. The Department must, however,
suspend or cancel the accreditation or approval granted by the
accrediting entity when the Department finds that agency or person is
substantially out of compliance with the standards in subpart F and the
accrediting entity has failed or refused, after consultation with the
Department, to take action. (Pub. L. 106-279, section 204(b)(1)).
[[Page 54088]]
In addition to this IAA statutory requirement, the Department has
included in the proposed regulation another basis for suspension or
cancellation by the Department. The Department may suspend or cancel
accreditation or approval when such action will further U.S. foreign
policy or national security interests, protect the ability of U.S.
citizens to adopt children under the Convention, or protect the
interests of children. The Department believes that this additional
basis for suspending or canceling a particular agency's or person's
accreditation or approval is a natural corollary of the Department's
foreign affairs authority and is consistent with the IAA because it
will enable the Department in specific situations to meet two of the
stated IAA goals, which are:
[T]o protect the rights of, and prevent abuses against,
children, birth families, and adoptive parents involved in adoptions
(or prospective adoptions) subject to the Convention, and to ensure
that such adoptions are in the children's best interests; and
[T]o improve the ability of the Federal Government to assist
United States citizens seeking to adopt children from abroad and
residents of other countries party to the Convention seeking to
adopt children from the United States. (Pub. L. 106-279, 2(b)(2) and
2(b)(3)).
This authority could be used, for example, if the practices of a
particular accredited agency were to cause a Convention country to
undertake action that could adversely affect the ability of United
States citizens generally to adopt children from the country in
question.
To obtain relief from the Department's suspension or cancellation,
an agency or person must demonstrate to the Secretary that the
deficiencies or circumstances that led to the adverse action have been
corrected or are no longer applicable. In the case of suspension, the
Department may terminate the suspension. In the case of cancellation,
the Department may give the agency or person permission to reapply to
the accrediting entity for accreditation or approval.
The Department, at its discretion, may also temporarily or
permanently debar an agency or person on the Department's own
initiative, at the request of DHS, or at the request of an accrediting
entity. The standard for debarment is drawn directly from section
204(c) of the IAA and requires that there be substantial evidence that
the agency or person is out of compliance and that 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.
In the case of temporary debarment, the Department's order, as
required by the IAA, may not be for less than three years. The order
must state the time frame for the temporary debarment and list the date
on which the agency or person may petition the Department for
withdrawal of the temporary debarment. If the Department withdraws the
temporary debarment, the agency or person may then apply for
accreditation or approval to an accrediting entity. In the case of
permanent debarment, the agency or person is not permitted to petition
the Department for withdrawal and may not apply for accreditation or
approval again.
As provided in the IAA, a United States district court may review
any challenged final adverse action of the Secretary in accordance with
the APA, 5 U.S.C. 706.
13. Subpart M--Dissemination and Reporting of Information by
Accrediting Entities
Subpart M requires the accrediting entity to make information about
accredited agencies and approved persons publicly available. The
provisions of subpart M on public disclosure of information will take
effect only after the Convention enters into force for the United
States. Specifically, the accrediting entity must disclose the name,
address, and contact information for each accredited agency or approved
person, and the names of agencies and persons denied accreditation or
approval. It must also provide the names of those who have been subject
to withdrawal of temporary accreditation, suspension, cancellation,
refusal to renew, or debarment.
The accrediting entity must also make certain other information
available to the public upon specific request. This includes confirming
whether an agency or person has a pending application and the status of
that application. It also includes indicating whether an agency or
person has been subject to withdrawal of temporary accreditation,
suspension, cancellation, refusal to renew, or debarment and providing
a brief statement of the reasons for the action. Most important, the
accrediting entity must make available a summary of the accreditation
or approval study for each accredited agency or approved person in a
format to be approved by the Department.
The accrediting entity must also maintain and disseminate certain
information about complaints. In particular, when a complaint is filed,
the accrediting entity must maintain a written record of it and must
verify certain information about the complaint upon request. The
accrediting entity must have procedures for disclosing information
about complaints that are substantiated and not substantiated.
The Department is placing these additional burdens on the
accrediting entity in response to suggestions that such information
should be made accessible so that parents can compare the performance
of agencies and persons. The Department realizes that requiring the
accrediting entity to perform this additional task will add to the
costs of accreditation and approval and that these costs will
ultimately be passed on to parents. There will be a substantial
benefit, however, to parents in having available information that
allows them to make informed decisions when selecting a service
provider. The publication and dissemination of this information will
also give agencies and persons another incentive to meet the standards
set in subpart F.
The Department also intends to convene a working group that will
include the accrediting entity(s) and other Federal government bodies,
including DHS. The working group will meet on a regular basis to
facilitate the exchange of information about the accreditation and
approval process and to discuss how the agencies and persons are
complying with these regulations.
14. Subpart N--Procedures and Standards Relating to Temporary
Accreditation
The IAA permits the temporary accreditation of small agencies for a
one- or two-year period starting on the date that the Convention enters
into force for the United States. Agencies, but not persons, may apply
to become temporarily accredited. The regulations in subpart N apply
only to temporary accreditation.
To be eligible for temporary accreditation, an agency must show
that it has provided adoption services in fewer than 100 intercountry
adoption cases in the calendar year preceding the year in which the TAD
falls (see subpart D for an explanation of the ``transitional
application deadline''). An agency may be eligible for a one- or two-
year period of accreditation, depending upon the number of intercountry
adoptions the agency has handled. An agency that has provided adoption
services in 50-99 intercountry adoptions in the calendar year preceding
the year in which the TAD falls may apply for a one-year period of
temporary accreditation. An agency that has provided adoption services
in fewer than 50 intercountry
[[Page 54089]]
adoptions in the calendar year preceding the year in which the TAD
falls may apply for a two-year period of temporary accreditation. Both
the one- and the two-year periods commence on the date that the
Convention enters into force for the United States.
To become temporarily accredited, an agency must demonstrate that:
(1) It is a non-profit agency licensed by State law to provide adoption
services in at least one State; (2) it is, and, for the last three
years prior to the TAD has been providing intercountry adoption
services; (3) it has the capacity to comply with the Department's and
the accrediting entity's reporting requirements; and (4) it has not
been involved in any improper conduct related to providing intercountry
adoption services. To prove that it has not been involved in any prior
improper conduct, the agency must provide evidence that it has
continually maintained its State license without suspension or
cancellation for misconduct and it has not been subject to any fault or
liability decisions or criminal findings of fraud or financial
misconduct for the three years preceding the TAD. The agency also must
demonstrate that it has a comprehensive and realistic plan for
achieving full accreditation and is actively taking steps to execute
that plan.
To maintain temporary accreditation, the agency must: (1) Follow
all applicable licensing and regulatory requirements; (2) refrain from
any improper conduct, including but not limited to, maintaining its
State license; (3) avoid any findings of fault or liability in any
administrative or judicial action; (4) ensure that it is not subject to
any criminal findings of fraud or financial misconduct; (5) adhere to
the prohibition against child-buying in Sec. 96.36; (6) respond to
complaints in accordance with Sec. 96.41; (7) comply with the
maintenance of records requirements in Sec. 96.42; (8) provide data in
accordance with Sec. 96.43; (9) comply with the home study, child
background study, and consents requirements in Sec. Sec. 96.47 and
96.53; and (10) plan for the transfer of its cases when necessary.
Furthermore, when acting as the primary provider using supervised
providers, the agency must comply with the requirements on primary
providers in Sec. Sec. 96.44, 96.45, and 96.46. When performing
Convention functions in either incoming or outgoing cases, it must
adhere to the standards in Sec. Sec. 96.52 (incoming cases) and 96.55
(outgoing cases). These standards and others are listed in Sec.
96.104.
These standards for obtaining or maintaining temporary
accreditation (subpart N) are much less comprehensive than the
standards for full accreditation (Subpart F). The reason for this
difference is that the IAA mandates that small agencies, which
initially might be unable to meet the more detailed standards
applicable to full accreditation, be allowed to provide services during
an initial phase-in period for Convention implementation while
developing the resources to comply with the accreditation standards.
The temporary accreditation provisions are designed to avoid
prematurely disqualifying small, community-based agencies from
providing Convention adoption services. These regulations take into
account the concern that, if too many small, non-profit agencies were
unable to meet the standards and consequently stopped providing
adoption services, then parents and children in some geographical areas
of the United States would find it difficult to obtain services. On the
other hand, the Department also considered the goal of ensuring that
temporarily accredited agencies could provide satisfactory adoption
services to families served. Thus, the Department struck a balance
between these competing concerns and developed a list of performance-
based standards applicable to temporarily accredited agencies, but also
incorporated by reference certain key standards from the accreditation
provisions in subpart F.
Moreover, some of the accrediting entity's procedures for
evaluating an agency for temporary accreditation differ from the
procedures for evaluating an agency for full accreditation. For
example, an accrediting entity must conduct a site visit before
granting full accreditation; however, for temporary accreditation, an
accrediting entity may, in its discretion, conduct a site visit if
necessary. The costs for site visits for full accreditation will be
wrapped into the initial accreditation fee disclosed to the agency.
Only if the accrediting entity decides to conduct a site visit for
temporary accreditation, however, will it then assess the agency
additional fees for the site visit costs. Also, the accrediting entity
must monitor the agency's progress in implementing the plan for full
accreditation and require the agency to make continual progress toward
completing the process of obtaining full accreditation. These are just
a few examples of the special procedures applicable to temporary
accreditation. The reader is encouraged to consult subpart N for a
detailed listing.
Finally, an accrediting entity may deny temporary accreditation, or
withdraw temporary accreditation after it is granted, when the agency
is not in substantial compliance with the applicable standards. Under
the regulations, there is no administrative or judicial review of an
accrediting entity's decision to deny temporary accreditation. This is
consistent with the fact that the IAA does not treat denial as an
adverse action. The Department believes, however, that withdrawal of
temporary accreditation is an adverse action subject to judicial review
under the IAA. Withdrawal of temporary accreditation is similar to
cancellation and other adverse actions that are subject to judicial
review in that an agency or person that was already permitted to
provide adoption services under the Convention will lose the ability to
provide such services. 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.
The circumstances of the withdrawal of its temporary accreditation may
be taken into account when evaluating the agency for full
accreditation.
VI. Regulatory Review
A. Regulatory Flexibility Act/Executive Order 13272: Small Business
The Regulatory Flexibility Act (RFA), 5 U.S.C. 601-612, requires an
agency to prepare a regulatory flexibility analysis of any rule subject
to notice and comment rulemaking requirements under the APA or any
other statute unless the agency certifies, pursuant to 5 U.S.C. 605(b),
that the rule will not have a significant economic impact on a
substantial number of small entities. An initial regulatory flexibility
analysis is required to ``describe the impact of the proposed rule on
small entities.'' (5 U.S.C. 603(a)). ``Small entities'' include ``small
organizations,'' which the RFA defines as any non-profit enterprise
that is independently owned and operated and not dominant in its field.
(5 U.S.C. 601(4), 601(6)).
This proposed rule directly affects all adoption service providers,
whether agencies or persons, who are providing intercountry adoption
services in cases involving other Convention countries. The estimate of
the number of such entities, which are mainly non-profits, is between
410 and 600. The Department estimates that the vast majority of these
adoption service providers are small entities under the RFA; therefore,
the Department has determined that this proposed rule will
[[Page 54090]]
have an impact on a substantial number of small entities.
The Department also has determined, however, that the impact on
small entities affected by the proposed rule will not be significant.
First, the effect of the proposed rule will be to allow agencies and
persons the flexibility to choose to be accredited or approved or to
act as supervised providers. Supervised providers are not required to
become accredited or approved and thus they can largely avoid the
economic impact of becoming accredited or approved. Second, certain
types of very small providers, specifically home study and child
background study preparers, are exempt. Third, the IAA and the
regulations provide for a tiering system that includes a special
temporary accreditation procedure just for small agencies (defined in
the IAA as agencies providing services in less than 100 intercountry
adoption cases a year). Small agencies eligible for temporary
accreditation will pay less in accreditation fees than applicants for
full accreditation and will not be required to meet the standards for
full accreditation. Fourth, the IAA and the regulations use an
accreditation model, and a substantial compliance structure that
provides agencies and persons with ample opportunity to correct
deficiencies before accreditation or approval is denied. Thus, the
accreditation model used in this proposed rule allows for the majority
of the standards to be performance-based. Substantial compliance, which
is typical of regulations based on an accreditation scheme, inherently
provides for regulatory flexibility because entities are not required
to comply perfectly with every single standard. Overall, these four
features of the proposed regulations minimize the burden on small
entities.
Finally, the Department notes that failing to establish an
accreditation/approval process under the Convention and the IAA could
adversely affect small entities by closing off opportunities for
intercountry adoptions with countries party to the Convention. Thus,
there are major benefits for adoption service providers, as well as
birth parents, adoptive parents, and children, from an accreditation
and approval process designed to comply with the Convention. Many
members of the public advocated during the preliminary input phase that
the Department should complete these proposed regulations as quickly as
possible to minimize the risk of other Convention countries refusing to
work with U.S. adoption service providers to place children with U.S.
parents.
Accordingly, the Department hereby certifies that this rule will
not have a significant economic impact on a substantial number of small
entities. Although the Department does not think these regulations will
have a significant economic impact on a substantial number of small
entities, it would like to solicit comment from the public on the
following questions: (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 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? It would be
helpful if commenters supply information and data to support their
comments on these enumerated issues.
Under Executive Order 13272, an agency must notify the SBA of draft
rules that may have a significant economic impact on a substantial
number of small entities. These proposed rules were submitted to the
Office of Advocacy for the SBA for review and comment prior to
publication of the rules, as required by Executive Order 13272.
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 the
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 proposed regulation in light of the
requirements of the IAA are discussed in Section IV paragraph (D) of
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.
E. Executive Order 12866: Regulatory Review
Under section 3(f) of Executive Order 12866, proposed regulations
that meet the definition of ``significant regulatory action'' generally
must be submitted to OMB for review. Section 3 of Executive Order 12866
exempts from this requirement ``rules that pertain to a military or
foreign affairs function of the United States, other than procurement
regulations and regulations involving import or export of non-defense
articles and services.'' These rules, through which the Department
provides for the conduct of U.S. Central Authority responsibilities
under the Convention, directly pertain to foreign affairs functions of
the United States. On the other hand, they were expressly made subject
to notice and comment rulemaking requirements under the APA by section
203(a)(3) of the IAA.
[[Page 54091]]
After reviewing the proposed rule under the criteria listed in
section 3(f) of the Executive Order, the Department has determined that
the regulations will not have a cumulative annual effect of $100
million or more on the economy. They will not create a serious
inconsistency or otherwise interfere with any action taken or planned
by another agency, because no other Federal agency has overlapping
authority with respect to the subject matter of the regulation. They
will not materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs, or the rights and obligations of
recipients thereof, because they have no implications for recipients of
such Federal funding. Also, the Department believes that the
regulations do not raise novel legal or policy issues arising out of
legal mandates, the President's priorities, or the principles set forth
in Executive Order 12866. Accordingly, the proposed rules are not a
``significant regulatory action'' within the meaning of the Executive
Order 12866. The Department recognizes, however, that these regulations
do address matters of considerable public interest. Therefore, although
the Department does not consider this rule to be a ``significant
regulatory action,'' the Department consulted with DHS, HHS, and the
SBA during the formulation of the rule. The rule was sent for review to
OMB and SBA.
F. Executive Order 12988: Civil Justice Reform
The Department has reviewed these proposed regulations in light of
sections 3(a) and 3(b)(2) of Executive Order 12988 to eliminate
ambiguity, minimize litigation, 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
As noted above in the Preamble (Part IV, Section F), the Department
has determined that Sec. 96.91 and Sec. 96.92 of subpart M, which
cover dissemination of information about agencies and persons to the
general public, constitute the type of ``third-party disclosures to the
general public'' that are ``information collections'' covered by the
PRA. The Department has concluded that these sections are not covered
by the IAA exemptions to the PRA. Accordingly, the Department will
submit an information collection request to OMB for review and
clearance in conjunction with this notice of proposed rulemaking, as
required by 44 U.S.C. 3507(d) and 5 CFR 1320.11.
Section 96.91--Dissemination of Information to the Public about
Accreditation and Approval Status--requires the accrediting entity to
disseminate information on an agency's or person's accreditation/
approval status. Section 96.92--Dissemination of Information to the
Public About Complaints Against Accredited Agencies and Approved
Persons--requires the accrediting entity to disseminate information on
complaints about agencies and persons. The requirements of these
sections specifically include:
--Requiring an accrediting entity to make available the names of
agencies and persons that have been granted or denied accreditation or
approval and those that have been subject to enforcement actions by the
accrediting entity or the Department.
--Requiring an accrediting entity to provide information about agencies
and persons that have pending applications for accreditation or
approval.
--Requiring an accrediting entity to provide a summary of the
accreditation/approval study on the agency or person.
--Requiring an accrediting entity to identify those agencies or persons
that have been the subject of an enforcement action and provide a brief
statement of the reasons for the action.
--Requiring an accrediting entity to verify information about the
status of complaints received against accredited agencies or approved
persons and identify whether the complaint was substantiated or not.
These proposed rules are intended to improve significantly the
amount and type of information on adoption agencies and persons
available to prospective adoptive parent(s) when they are in the
process of selecting an adoption service provider. They are neither
required nor expressly authorized by the IAA, but the Department
believes that they are in furtherance of the oversight and enforcement
functions of accrediting entities provided for in IAA subsections
202(b)(2) and (3). Accrediting entities may provide the information in
any format, including using a Web site to publish such information
about accredited agencies or approved persons.
The Department is seeking a three-year approval for these
collections. The Department requests written comments and suggestions
from the public and affected accrediting entities concerning this
proposed collection of information. Comments are being solicited to
permit the Department to:
(1) Evaluate whether the proposed collection of information is
necessary for the proper performance of the functions of the
Department, including whether the information will have practical
utility;
(2) Evaluate the accuracy of the agency's estimate of the burden
of the proposed collection of information, including the validity of
the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information
to be collected;
(4) Minimize the burden of the collection of the information,
including through the use of appropriate automated, electronic,
mechanical, or other technological collection techniques.
Overview of this information collection:
Type of Information Collection: New.
Title: Accrediting Entity Dissemination of Information About
Accredited Agencies and Approved Persons to the Public.
Affected Public & Abstract: Designated Accrediting Entities (non-
profit institutions or State public bodies).
The IAA requires that the Department designate accrediting entities
to accredit agencies or approve persons to provide adoption services
for intercountry adoptions covered under the Convention. This
information collection requires any such designated accrediting
entities to disseminate information to prospective adoptive parent(s)
and the public on the accreditation/approval status of agencies and
persons. This information collection requires accrediting entities to
disclose to prospective adoptive parent(s) and the public information
on complaints filed against accredited agencies and approved persons.
This third-party disclosure requirement is in furtherance of section
202(b) of the IAA, which charges accrediting entities with
responsibility for oversight and review of complaints against
accredited agencies and approved persons.
An Estimate of the Number of Respondents and the Amount of Time
Required to Comply: The number of accrediting entities to be designated
by the Department after publication of the final rule is unknown. The
Department estimates that the number of designated accrediting entities
is likely to be less than 10, but may constitute all or a substantial
majority of the relevant accrediting industry. (See 5 CFR
1320.3(c)(4)(ii)).
Burden and an Estimate of the Total of Public Burden (in hours) Per
Year Associated with the Collection: 60
[[Page 54092]]
minutes multiplied by 365 days; approximately 365 burden hours per
accrediting entity; for an estimated annualized total of 3,285 hours.
We request and welcome comments on the accuracy of the estimates.
Comments on the collection of information should be sent to OMB, Attn:
Desk Officer for the Department of State, Office of Information and
Regulatory Affairs, Room 10202, New Executive Office Building,
Washington, DC 20503 who may be reached on 202-395-3897; also send
copies to Department of State at the address provided for in the
Addresses section of this preamble. OMB is required to make a decision
concerning the collection of information between 30 and 60 days after
publication of this proposed rule. Consequently, a comment to OMB is
best assured of having its full effect if OMB receives it within 30
days after publication of this proposed rule.
H. 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 proposed 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 proposed 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 proposed 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 adoption service providers
are taking appropriate steps to protect children and to strengthen and
support families involved in the intercountry adoption process.
List of Subjects in 22 CFR Part 96
Adoption and foster care, International agreements, Reporting and
recordkeeping requirements.
Accordingly, the Department proposes to add 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 accrediting entity be a non-profit 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 Activities that do not require accreditation, approval, or
supervision.
96.14 Providing adoption services using supervised providers,
exempted providers, public bodies, or public authorities.
96.15 Public bodies.
96.16 Effective date of accreditation and approval requirements.
96.17 [Reserved]
Subpart D--Application Procedures for Accreditation and Approval
96.18 Scope.
96.19 Special provisions for agencies and persons seeking to be
accredited or approved at 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]
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 supervised providers in other Convention countries.
Standards for Cases in Which a Child is Immigrating to the United
States
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 Hague Convention communication and coordination
functions in incoming cases.
Standards for Cases in Which a Child is Emigrating From the United
States
96.53 Background studies on the child and consents in outgoing
cases.
96.54 Placement standards in outgoing cases.
96.55 Performance of Hague Convention communication and coordination
functions in outgoing cases.
96.56 [Reserved]
Subpart G--Decisions on Applications for Accreditation or Approval
96.57 Scope.
[[Page 54093]]
95.58 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 Review of complaints about accredited agencies and approved
persons by the Complaint Registry.
96.71 Review of complaints against accredited agencies and approved
persons by the accrediting entity.
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 Petitions to terminate adverse action by the accrediting
entity.
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 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 adoption
service providers pursuant to the Intercountry Adoption Act of 2000
(Pub. L. 106-279, 42 U.S.C. 14901-14954). Subpart B of this part
provides for 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 adoption service providers
(including renewal of accreditation or approval). Subparts I through M
address the oversight of accredited or approved adoption service
providers. Subpart N establishes special rules relating to small
adoption service providers 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 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 formal act that establishes the legal parent-
child relationship between a minor and an adult who is not already the
minor's legal parent, so that as a result of the formal act the
adoptive parent is the adoptive child's legal parent for all purposes
and the legal parent-child relationship between the adoptive child and
any former parent(s) is terminated.
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 body, 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 body 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 (Pub. L. 106-279,
303(d), 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
[[Page 54094]]
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, non-profit 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 a
child's prospective adoptive parent(s) that has been:
(1) Completed by an accredited agency or temporarily accredited
agency; or
(2) A home study that has been completed by an approved person or
exempted provider and approved by an accredited agency or a 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 (Pub. L.
106-279, section 102(e), 42 U.S.C 14912).
Central Authority means the entity designated as such under Article
6(1) of the Convention by any Convention country (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 entity established by the Secretary
pursuant to Sec. 96.70 as responsible for receiving complaints about
accredited agencies, temporarily accredited agencies, and approved
persons and performing such other services as the Secretary may
determine.
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
another 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 another Convention country when, in connection
with the adoption, the child has moved or will move from one Convention
country to another Convention country.
Convention country means a country that has become a party to the
Convention and with which the Convention has come into force for the
United States.
Country of origin means the country in which a child is 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.
Department of Homeland Security encompasses the former Immigration
and Naturalization Service (INS) or any successor agency entity
designated by the Secretary of Homeland Security to assume the
functions vested in the Attorney General by the IAA relating to the
Immigration and Naturalization Service's responsibilities.
Disruption means the interruption of a placement for adoption
before the adoption has become final.
Dissolution means the termination of an adoption after it has
become final.
Exempted provider means a social work professional or organization
that performs a home study on prospective adoptive parent(s) or a child
background study in connection with a Convention adoption (including
any reports or updates), but that does not provide 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).
Legal custody means having legal responsibility for a child under
the order of a court of law, a public body, competent authority, public
authority, or by operation of law.
Legal services means services, other than those defined as
``adoption services'' in this section, 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 bodies or public authorities.
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 authority means an authority operated by a national or
subnational government of a Convention country.
Public body means a body operated by a State, local, or tribal
government within the United States.
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 an agency, person, or other non-
governmental entity, including a foreign entity, that is providing one
or more adoption services
[[Page 54095]]
in a Convention case under the supervision and responsibility of the
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 will solicit applications from eligible private
non-profit and public entities for designation as an accrediting entity
through a request for statements of interest that will be publicly
announced. Announcements soliciting statements of interest will be
published on the Department of State's Web site, at http://www.state.gov.
The Secretary 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
accredited entity's designation will be set forth in an Agreement
between the Secretary and the accrediting entity that will govern the
entity's operations. The Agreement 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 non-profit 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 selected by the Secretary;
(c) That it can monitor the performance of agencies it has
accredited and persons it has approved 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 and persons it has approved and
appropriate enforcement action against agencies to which it has granted
temporary accreditation;
(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;
and
(h) That it can comply with any conflict-of-interest prohibitions
set by the Secretary in the request for statements of interest.
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;
(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 the accredited agencies and approved
persons that it oversees are eligible for renewal of their
accreditation or approval on a cyclical basis 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 as required by the Secretary in transferring adoption
cases and adoption records of agencies or persons that cease to provide
or are no longer permitted to provide adoption services in Convention
cases.
(b) The Secretary may require an accrediting entity:
(1) To enter into an agreement with the Complaint Registry for
services in screening complaints and performing other services relevant
to the accrediting entity's functions; and
(2) Pursuant to such agreement, to remit to the Complaint Registry
a portion of the accrediting entity's fees collected under its approved
schedule of fees, to cover the costs of such services. Any such
agreement between the accrediting entity and the Complaint Registry and
the portion of accreditation/approval fees to be remitted to the
Complaint Registry shall be subject to the approval of the Secretary.
(c) An accrediting entity must perform these 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
[[Page 54096]]
and volume of Convention cases of the agencies and 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 and 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 Department of State 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, and 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, approved persons,
and 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) 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 frequently and carefully to monitor 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 (Pub. L. 106-279, 42 U.S.C.
14923(b)(1)(A)(ii)), and Sec. 96.47 of these regulations.
(c) 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 (Pub. L.
106-279, 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.
Once the Convention has entered into force for the United States,
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:
(a) An accredited agency, a temporarily accredited agency, or an
approved person;
(b) A supervised provider;
(c) An exempted provider; or
(d) A public body.
Sec. 96.13 Activities that do not require accreditation, approval, or
supervision.
(a) Home studies and child background studies. A social work
professional or organization that is performing a home study on the
prospective adoptive parent(s) or a child background study (including
any reports or updates) in connection with a Convention adoption but is
not providing any other adoption service in the case is an ``exempted
provider.'' Exempted providers do not have to be accredited,
temporarily accredited, approved, or operate as a supervised provider.
If the agency or person provides another adoption service in the case
in addition to the home study or child background study, it must be
accredited, temporarily accredited, approved, or operate as a
supervised provider. The home study or child background study prepared
by an exempted provider must be submitted to an accredited agency or
temporarily accredited agency, not an approved person, for review and
approval. An accredited agency or temporarily accredited agency must
approve an exempted provider's home study in accordance with Sec.
96.47(c) and an exempted provider's child background study in
accordance with Sec. 96.53(b).
(b) Child welfare services. An agency or person does not need to be
[[Page 54097]]
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 one of the six ``adoption services'' defined in Sec. 96.2 in a
Convention adoption case (including a home study or child background
study), it must be accredited, temporarily accredited, or approved or
operate as a supervised provider.
(c) Legal 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 legal services, and not
providing any adoption services, in connection with a Convention
adoption. If the agency or person provides both legal services and any
one of the six ``adoption services'' defined in Sec. 96.2 in a
Convention adoption case (including a home study or child background
study), it must be accredited, temporarily accredited, approved, or
operate as a supervised provider. 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 body 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 unless
acting on their own behalf 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 supervised providers,
exempted providers, public bodies, or public authorities.
(a) Accreditation, temporary accreditation, and approval under this
part requires 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 accredited agency, or approved person is providing all six
``adoption services'' listed in Sec. 96.2 by itself, it must act as
the primary provider. If just one accredited agency, temporarily
accredited agency, or approved person is involved in providing some of
the six ``adoption services'' listed in Sec. 96.2, and the other
providers are supervised providers, public bodies, public authorities,
or exempted providers, 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 another Convention country for the purpose of placement for
adoption;
(3) Assuming responsibility for liaison with another Convention
country's Central Authority or its designees with regard to arranging
an adoption; or
(4) Receiving from or sending to another 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) 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;
(3) A supervised provider; or
(4) A public body.
(c) 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 another Convention country:
(1) A competent authority, a public authority, or an entity
accredited by that Convention country to provide services under the
Convention; or
(2) An agency, person, or other entity that will act under the
primary provider's supervision and responsibility (a foreign supervised
provider).
(d) The primary provider is not required to provide supervision or
assume responsibility for:
(1) Public bodies and agencies and persons accredited or approved
in the United States pursuant to subpart F of this part; and
(2) Competent authorities and public authorities of other
Convention countries, and entities accredited by other Convention
countries.
(e) Public bodies, competent authorities, public authorities, and
accredited agencies and approved persons are not required to operate
under the supervision and responsibility of the primary provider.
(f) The primary provider must adhere to the standards contained in
Sec. 96.45 (U.S. supervised providers) when using supervised providers
in the United States and the standards contained in Sec. 96.46
(foreign supervised providers) when using supervised providers in other
Convention countries.
Sec. 96.15 Public bodies.
Public bodies 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. 96.16 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 other 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.
Sec. 96.17 [Reserved]
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
[[Page 54098]]
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 at 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 provisions 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 renewal, it must comply with the procedures in Sec. 96.63.
Sec. 96.19 Special provisions for agencies and persons seeking to be
accredited or approved at 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 at the time the
Convention enters into force for the United States must submit an
application to an accrediting entity, 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. The 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 otherwise 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 otherwise 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 in 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 or standards evaluation 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; and
(3) 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
[[Page 54099]]
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
the agency's or person's size, the number of adoption cases it handles,
the number of sites the accrediting entity decides to visit, and 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.
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
all information and documents, including case files and proprietary
information, that it requires 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) 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, and other functions under its Agreement and this part.
Unless otherwise authorized by the agency or person in writing, or
required pursuant to subpart M of this part, 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 and approval and related functions under its Agreement
and this part, or to provide information to the Secretary, the
Complaint Registry, or an appropriate Federal, State, or local agency
or law enforcement entity.
(b) Unless the names and other information that identifies birth
parent(s), prospective adoptive parent(s), and adoptee(s) is 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 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 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 accrediting entity will assign points to each different
standard, or to each element of a standard, depending on the relative
importance of the particular standard (or element) to compliance with
the Convention and the IAA. The points to be given to the standard, or
to elements of the standard, must be determined by the accrediting
entity in consultation with the Secretary. The accrediting entity must
advise applicants of the points assigned to the standards (or elements
of the standards) at the time it provides them 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 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(a)(3) of the Social Security Act (42 U.S.C. 1320(a)(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
[[Page 54100]]
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 the standards in 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 subpart F of this
part 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 through agencies, persons, or other entities that
are licensed or authorized by State law to provide adoption services in
that State.
(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 non-profit tax treatment under section
501(c)(3) of the Internal Revenue Code of 1986, as amended, or for non-
profit 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 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 in carrying out the adoption-related
functions of the organization. This standard does not apply where the
person is an individual practitioner.
(b) The agency or person has a board of directors or similar
governing body that establishes and approves its mission, policies,
budget, and programs; provides leadership to secure the resources
needed to support its programs; 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.
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.
(b) The agency's or person's finances are subject to independent
annual audits.
(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 generally maintains sufficient cash
reserves or other financial resources to meet its operating expenses
for three months, taking into account its projected volume of cases.
(f) If it accepts donations, the agency or person has safeguards in
place to ensure that such donations do not influence child placement
decisions in any way.
(g) The agency or person uses an independent professional
assessment of the risks it assumes as the basis for determining the
type and amount of professional, general, directors' and officers', and
other liability insurance to carry. The risk assessment includes an
evaluation of the risks of using supervised providers as provided for
in Sec. 96.45 and Sec. 94.46 and of providing adoption services to
clients who, consistent with Sec. 96.39(d), will not sign blanket
waivers of liability.
(h) The agency or person maintains insurance in amounts reasonably
related to its exposure to risk, including the risks of providing
services through supervised providers, but in no case in an amount less
than $1,000,000 per occurrence.
(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
providing intercountry adoption services with incentive fees for each
child placed for adoption or on a similar contingent fee basis.
(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,
and employees of the agency or person are not unreasonably high in
relation to the services actually rendered, taking into account the
location, number, and qualifications of staff, workload requirements,
budget, and size of the agency or person, and available norms for
compensation within the intercountry adoption community.
(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)
[[Page 54101]]
of this section and its for-profit or non-profit status.
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 relating to the agency or person under its current or any
former names:
(1) Any instances in which the agency or person has permanently
lost the right to provide adoption services in any State or a 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, 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) against
the agency or person, relating to the provision of adoption-related
services, including the basis and disposition of such complaint(s);
(6) For the prior ten-year period, any past or pending
investigation(s) by Federal or State authorities, criminal charge(s),
child abuse charge(s), malpractice complaint(s), or lawsuit(s) against
the agency or person, related to the provision of 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 any civil or
administrative violations under Federal, State, or foreign law
involving financial irregularities;
(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 are
currently carried out by an agency or person, affiliate organizations,
or by any entity in which the agency or person has an ownership or
control 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 also 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 financial 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
currently carried out by individual directors, officers, or employees
of the agency or person.
(d) In order to permit the accrediting entity to evaluate the
suitability of a person who is an individual practitioner for approval,
the individual does as follows:
(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; and
(3) If the individual is 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.
(e) Any disciplinary action considered by a State Bar Association,
including consideration of an action to disbar an attorney, must
immediately be reported by the attorney to the accrediting entity,
regardless of whether the action relates to intercountry adoption.
(f) 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
[[Page 54102]]
clinical skills and judgment (home studies, child background studies,
counseling, parent preparation, post-placement, and other similar
services) have 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
education;
(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:
(1) Have a master's degree from an accredited program of social
work education or in another human service field; or
(2) Have a bachelor's degree from an accredited program of social
work education; a combination of a bachelor's degree in another human
service field and prior experience in family and children's services,
adoption, or intercountry adoption; or a bachelor's degree in any field
and extensive experience in intercountry adoption. Additionally, the
non-supervisory employees are supervised by an employee of the
accredited agency or approved 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) Have a minimum of a master's degree from an accredited program
of social work education or 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;
(2) Are authorized to complete a home study under the laws of the
State of the child's proposed residence; and
(3) Meet the INA requirements for home study preparers in 8 CFR
204.3(b) covering home studies in Convention cases.
(g) Child background studies. The agency's or person's employees
who prepare child background studies have a minimum of a master's
degree from an accredited program of social work education or 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.
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) 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) The agency or person provides initial training to 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) 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 most frequent medical and psychological problems experienced by
children from the countries of origin served by the agency or person;
(7) The process of developing emotional ties to an adoptive family;
(8) 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
(9) Child, adolescent, and adult development.
(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 20 hours of training each year, or more if required by
State law, on current and emerging adoption practice issues through
participation in seminars, conferences, and other similar programs.
(d) The agency or person exempts employees from elements of the
orientation and training required in paragraphs (a) and (b) of this
section only where the employee has prior 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, fees, and the mutual rights and responsibilities
of clients and the agency or person;
(2) A sample of a contract substantially like the one that the
prospective client(s) will be expected to sign should they proceed; and
(3) The entities 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.
[[Page 54103]]
(b) The agency or person maintains and makes available upon request
to client(s) and prospective client(s) information on:
(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 awaiting adoption, when available.
(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 does not require a client or prospective
client to sign a blanket waiver of liability in connection with the
provision of adoption services in Convention cases.
(e) The agency or person cooperates with reviews, inspections, and
audits.
(f) The agency or person uses the internet to place particular
children 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 estimated fees and 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 expenses
that the prospective adoptive parent(s) will be charged in connection
with a Convention adoption:
(1) Home Study. The expected total fees and expenses for home study
preparation, whether the home study is to be prepared directly by an
accredited agency or temporarily accredited agency, or prepared by a
supervised provider, exempted provider, or approved person and reviewed
and approved by an accredited agency or temporarily accredited agency;
(2) Adoption expenses in the United States. The expected total fees
and 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, 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
expenses for all adoption services that will be provided in the child's
Convention country. This category includes, but it not limited to,
costs for care of the child prior to adoption, costs for personnel,
administrative overhead, training, education, and communications, and
any other costs related to providing adoption services in the child's
Convention country;
(4) Translation and document expenses. The expected total fees and
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, 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 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;
(5) Travel and accommodation expenses. The expected total fees and
expenses for any travel and accommodation services arranged by the
agency or person for the prospective adoptive parent(s);
(6) Contributions. Any fixed contribution amount 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 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) The agency or person also specifies in its written adoption
contract when and how funds advanced to cover fees or expenses will be
refunded if adoption services are not provided.
(d) 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) an explanation of
the use of such funds.
(e) 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 other
Convention country are minimized or unnecessary.
(f) The agency or person does not customarily charge additional
fees and expenses beyond those disclosed in the adoption contract and
has a written policy to this effect. In the event that unforeseen
additional fees and expenses are incurred in the other Convention
country, the agency or person charges 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 $800 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 in the Convention
[[Page 54104]]
country and retains copies of such receipts.
(g) When its delivery of services is completed, the agency or
person gives the prospective adoptive parent(s) an accounting of both
the total fees and expenses incurred within thirty days of the
completion of the delivery of the services.
(h) The agency or person returns any funds to which the prospective
adoptive parent(s) may be entitled at the same time that the agency or
person provides the accounting required in paragraph (g) of this
section.
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) though (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 contract is signed.
(b) The agency or person permits any birth parent, prospective
adoptive parent, or adoptee to lodge a complaint or appeal about any of
the services or activities of the agency or person that he or she
believes are inconsistent with the Convention, the IAA, or the
regulations implementing the IAA.
(c) The agency or person responds in writing to complaints within
thirty days of receipt, and provides expedited review of complaints
that are time-sensitive or that involve allegations of fraud.
(d) The agency or person maintains a written record of each
complaint and the steps taken to investigate and respond to it and
makes this record available to the accrediting entity, the Complaint
Registry, 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,
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
Complaint Registry, on a quarterly basis, a summary of all complaints
received during the preceding quarter (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, 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 such other information about
complaints received as may be requested by the accrediting entity, the
Complaint Registry, 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
retrievable manner for the period of time required by applicable State
law.
(b) The agency or person makes readily available to the adoptee or
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 preserves and discloses information in its
custody about the adoptee's origin, social history, and birth parents'
identity in accordance with applicable State law.
(d) The agency or person protects the privacy of birth parent(s),
prospective adoptive parent(s), and adoptee(s) to whom adoption
services were provided and safeguards sensitive information.
(e) 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.
(f) The agency or person has a plan that is consistent with the
provisions of this section 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.
(g) 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 persom 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:
[[Page 54105]]
(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 directly to the Secretary and
as required by 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
provides, either directly or through arrangements with other accredited
agencies, temporarily accredited agencies, approved persons, supervised
providers, exempted providers, public bodies, competent authorities, or
public authorities, all six ``adoption services'' listed in Sec. 96.2,
and develops and implements a service plan for providing all six of the
required adoption services.
(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 acting as a primary
provider in any Convention adoption case and, when acting as the
primary provider, provides appropriate supervision to supervised
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) Clearly identifies 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 consents (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) (blanket waivers of
liability), and Sec. 96.41(a) 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) Clearly states 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 thirty 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;
(8) Provides that the primary provider will retain legal
responsibility for each case in which adoption services are provided,
as required by paragraph (c) of this section;
(9) Requires the supervised provider to protect the privacy of the
individuals it serves, safeguard sensitive information, and ensure that
personal data gathered or transmitted in connection with an adoption is
used only for the purposes for which the information was gathered;
(10) 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;
(11) 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;
(12) Requires the supervised provider to disclose promptly to the
primary provider any changes in the suitability information required by
Sec. 96.35;
(13) 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.
(c) The agency or person, when acting as the primary provider and
using supervised providers in the United States to provide adoption
services, does the following in relation to risk management:
(1) Assumes tort, contract, and other civil liability to the
prospective adoptive parent(s) for the supervised
[[Page 54106]]
provider's provision of the contracted adoption services and its
compliance with the standards in this subpart F; and
(2) Maintains a bond, escrow account, or liability insurance in an
amount sufficient to cover the risks of liability arising from its work
with supervised providers.
(d) Nothing in this section shall be construed as prohibiting the
primary provider from obtaining indemnification or from seeking damages
or other redress from a supervised provider for breach of contract, or
from pursuing any other legal claim against such supervised provider
arising from the provision of contracted adoption services.
Sec. 96.46 Using supervised providers in other Convention countries.
(a) The agency or person, when acting as the primary provider and
using foreign supervised providers to provide adoption services in
other 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; and
(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.
(b) The agency or person, when acting as the primary provider and
using foreign supervised providers to provide adoption services in
other Convention countries, ensures that each such foreign supervised
provider operates under a written agreement with the primary provider
that:
(1) Clearly identifies 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 prohibit child
buying by any of its employees and agents; to have a written policy
prohibiting 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, other than reasonable or required
payments for activities related to the adoption proceedings, pre-birth
and birth medical costs, the care of the child, or the provision of
child welfare and child protection services generally; and to provide
training to its employees and agents on this policy;
(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 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) Clearly states the compensation arrangement for the services to
be provided and the fees and expenses to be charged by the foreign
supervised provider;
(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 thirty days of the
completion of the delivery of services;
(9) Provides that the primary provider will retain legal
responsibility for each case in which adoption services are provided,
as required by paragraph (c) of this section;
(10) 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;
(11) 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;
(12) Requires the foreign supervised provider to disclose promptly
to the primary provider any changes in the suitability information
required by Sec. 96.35; and
(13) 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
using foreign supervised providers to provide adoption services in
other Convention countries, does the following in relation to risk
management:
(1) Assumes tort, contract, and other civil liability to the
prospective adoptive parent(s) for the foreign supervised provider's
provision of the contracted adoption services and its compliance with
the standards in this subpart F; and
(2) Maintains a bond, escrow account, or liability insurance in an
amount sufficient to cover the risks of liability arising from its work
with foreign supervised providers.
(d) Nothing in this section shall be construed as prohibiting the
primary provider from obtaining indemnification or from seeking damages
or other redress from a foreign supervised provider for breach of
contract, or from pursuing any other legal claim against such
supervised provider arising from the provision of contracted adoption
services.
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) 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 specialneeds);
(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 parents(s);
[[Page 54107]]
(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 (that is, it was
initially prepared by an approved person or an exempted provider), 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 personnel
qualifications in Sec. 96.37(f), or, if the individual is an exempted
provider, ensure 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 (including any supplemental
statement to the home study) to the Central Authority or other
competent authority of the child's country of origin.
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;
(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, and 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 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;
(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 parent(s) in light of the particular child(ren) 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 where the 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 to the prospective adoptive parent(s) at least two weeks before
either the adoption or placement for adoption, or the date on which the
prospective adoptive parent(s) travel to the other Convention country
to complete all procedures in such country relating to the adoption or
placement for adoption, whichever is earlier.
(b) To the fullest extent practicable, the agency or person
provides the prospective adoptive parent(s) with a correct and complete
English-language translation of the records and, where the medical
records provided pursuant to paragraph (a) of this section are a
summary or compilation of other
[[Page 54108]]
medical records, the agency or person provides a copy of the original
medical records used to create that summary or compilation if the
original medical records are available.
(c) The agency or person provides the prospective adoptive
parent(s) with an opportunity to arrange another 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 or agent 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, and
changes in the child's condition since the Convention country or other
child welfare authority assumed custody of the child;
(3) Growth data and developmental status 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 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
information includes:
(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;
(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 whether the individual relied on objective
data or subjective perceptions in drawing 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 or agent 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 history and cultural, racial,
religious, ethnic, and linguistic background; and
(2) Information about all of the child's past and current
placements prior to adoption, including information on who assumed
custody and provided care for the child.
(g) Where any of the information listed in paragraphs (d) and (f)
of this 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.
(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.
(j) Neither the agency or person nor its agents withhold from or
misrepresent to the prospective adoptive parent(s) any 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 at least a week (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.
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) After the child is placed with the prospective adoptive
parent(s) prior to the adoption, 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, 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) When counseling in a placement for adoption that is in crisis
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 written adoption 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
[[Page 54109]]
(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 on a child to the other Convention country when required
by the other Convention country. Where such reports are required, the
agency or person:
(1) Informs the prospective adoptive parent(s) 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 (Pub. L. 106-279, section 301(c), 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 either informs the prospective adoptive
parent(s) in the written adoption contract that the agency or person
will not provide services if an adoption is dissolved or provides a
plan describing the agency's or person's responsibilities, if any, if
an adoption is dissolved.
(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 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.
(e) If the agency or person voluntarily provides post-adoption
services, it ensures that the individual providing such services has
knowledge of post-adoption issues and, if possible, of the legal,
social, cultural, and emotional issues pertinent to the particular
adoption case in which it is involved.
Sec. 96.52 Performance of Hague Convention communication and
coordination functions in incoming cases.
(a) The agency or person keeps the Central Authority of the other
Convention country and the Secretary informed 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 other Convention country, to:
(1) Transmit on a timely basis the home study to the Central
Authority or 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 other 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.
(b) Where the child background study is not prepared in the first
instance by an accredited agency or temporarily accredited agency (that
is, it was initially prepared by an approved person or exempted
provider), it ensures that the 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:
(1) Includes all the information required by paragraph (a) of this
section;
(2) Evidences that consents were obtained in accordance with
paragraph (c) of this section;
(3) Reflects consideration of the child's wishes and opinions in
accordance with paragraph (d) of this section; and
(4) Was prepared either by an exempted provider or by an individual
who meets the personnel qualifications set forth in Sec. 96.37(g).
(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, including that it
will result in the child living in another country; 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 ten years of age or older, or as otherwise
provided by State law, the agency or person gives due
[[Page 54110]]
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 takes all appropriate measures to transmit
to the Central Authority or other competent authority of the other
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 thirty 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
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 to find a timely adoptive placement for the child in
the United States were made, or that making such reasonable efforts was
not in the best interests of the child.
(c) In placing the child for adoption, the agency or person:
(1) To the extent consistent with State or Federal law, gives
significant weight to the placement preferences expressed by the birth
parent(s) in all voluntary placements;
(2) 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) If and as required by State law, the agency or person provides
the birth parent(s) with independent legal counsel at the expense of
the agency or person or the prospective adoptive parent(s), and fully
discloses to the birth parent(s) that the child is to be adopted by
parent(s) who reside outside the United States.
(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 another
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 other 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 Hague Convention communication and
coordination functions in outgoing cases.
(a) The agency or person keeps the Central Authority of the other
Convention country and the Secretary informed 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 other 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 other
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 other 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
[[Page 54111]]
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 subpart G of this part do not
apply to agencies seeking temporary accreditation.
Sec. 95.58 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
deadline 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 deadline 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 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, so as to prevent renewal requests from coming due
at the same time, the accrediting entity may, in consultation with the
Secretary, accredit or approve some agencies and persons that applied
by the transitional application deadline for a period of between three
and five years for their first accreditation or approval cycle. The
accrediting entity must establish criteria, which must 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 subpart H of
this part 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 it is responsible for monitoring of the date by which
they should seek renewal of their accreditation or approval so that the
renewal process can reasonably be completed before the agency's or
person's current accreditation or approval expires. If the accredited
agency or approved person wishes to renew its accreditation or
approval, it must seek renewal by this date. 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 accrediting
entity's instructions when submitting a request for renewal and
preparing documents and other information for the 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
routinely 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 96.25 and 96.26, relating to requests for and use of
information, and Sec. 96.27, relating to the substantive criteria for
evaluating applicants for accreditation or approval, other than
[[Page 54112]]
Sec. 96.27(e), will govern determinations whether to renew
accreditation or approval. In addition, 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, the provisions in subpart I of
this part 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.
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.
Sec. 96.67 [Reserved]
Subpart J--Oversight Through Review of Complaints
Sec. 96.68 Scope.
The provisions in this subpart establish the procedures for
processing complaints against accredited agencies and approved persons.
Temporary accreditation is governed by the provisions of subpart N of
this part, and as provided for in Sec. 96.103, procedures for
processing complaints on temporarily accredited agencies must comply
with subpart J of this part.
Sec. 96.69 Filing of complaints against accredited agencies and
approved persons.
(a) Complaints against accredited agencies and approved persons may
be made as follows:
(1) The complaint must first be filed with the agency or person
providing adoption services;
(2) If the agency or person against whom the complaint is being
made is a supervised provider, the complaint must also be filed with
the primary provider;
(3) If a complaint is filed with a supervised provider, the
supervised provider must instruct the complainant to also file the
complaint with the primary provider and must provide the complainant
with the primary provider's contact information;
(4) If the complaint cannot be resolved through the complaint
processes of the agency or person providing the services or the primary
provider (if different), or if the complaint was resolved by an
agreement to take action but the agency or person providing the service
or the primary provider (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, which
will refer the complaint to the accrediting entity or other appropriate
authority in accordance with Sec. 96.70(b).
(b) A Federal government body, including DHS, a public body, any
law enforcement authority or licensing authority, or a foreign Central
Authority may make complaints directly to the Complaint Registry or the
accrediting entity overseeing the accredited agency or approved person.
Federal government bodies, including DHS, may report complaints
directly to the Secretary.
Sec. 96.70 Review of complaints about accredited agencies and
approved persons by the Complaint Registry.
(a) The Secretary shall establish a Complaint Registry to assist
the Secretary in executing his or her oversight responsibilities and to
perform such functions on behalf of the accrediting entity as the
Secretary may determine. 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 (Pub. L. 106-279,
section 403(b), 42 U.S.C. 14943(b)) or by the accrediting entity(s).
(b) The Secretary will provide for the Complaint Registry to:
(1) Record, screen, refer (to the appropriate accrediting entity,
the Secretary, or a law enforcement or other agency), and track the
resolution and disposition of complaints that could not be resolved
through the complaint processes of the relevant agency or person that
provided the service in question, or the primary provider (if
different);
(2) Record, screen, refer (to the appropriate accrediting entity,
the Secretary, or a law enforcement or other agency), and track the
resolution and disposition of cases in which the agency or person that
provided the service in question, or the primary provider (if
different) failed to take specific remedial action on a complaint
within thirty days of agreeing to do so;
(3) Report possible patterns of complaints made at any time against
a particular accredited agency or approved person to the accrediting
entity overseeing that agency or person; and
(4) Perform such other functions as the Secretary may assign to it
to assist the accrediting entity or the Secretary in exercising their
oversight and other responsibilities under the IAA.
(c) The Secretary will post on the Department's Web site contact
information necessary for submitting complaints to the Complaint
Registry and information concerning its precise functions.
Sec. 96.71 Review of complaints against accredited agencies and
approved persons by the accrediting entity.
(a) The accrediting entity must establish written procedures,
including deadlines, for recording, investigating, and acting upon
complaints it receives about agencies it has accredited and persons it
has approved. 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, it must act as follows:
(1) Unless the complaint was made directly to the Complaint
Registry or the accrediting entity pursuant to Sec. 96.69(b), the
accrediting entity must verify whether the complainant has already
attempted to resolve the complaint through the internal complaint
procedures of the agency or person that provided the service or the
primary provider (if different) and, if not, may refer the complaint to
the agency or person, or to the primary provider, for
[[Page 54113]]
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 the 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 from
the Secretary, other Federal government bodies, including DHS, any law
enforcement or licensing authority, a public body, or a foreign Central
Authority.
(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, the Complaint
Registry, and to any other entity that referred the information.
(d) 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 to the Attorney General or other appropriate 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 (Pub. L. 106-279, section 404, 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.
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 in subpart K of this part 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;
(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 any 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 the agency or person of the deficiencies
warranting adverse action and provide it with an opportunity to take
corrective action and demonstrate compliance before the adverse action
is imposed. If the accrediting entity took adverse action but did not
communicate with the accredited agency or approved person about the
deficiency in advance (such as in a situation in which providing
advance notice is not consistent with ensuring that a child's well-
being is protected), the accrediting entity must allow the accredited
agency or approved person an opportunity after the notice is issued to
provide information refuting that adverse action was warranted. The
accrediting entity 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 its
adoption records. In the case of cancellation, it must, under the
oversight of the accrediting entity, transfer its Convention adoption
cases and adoption records to other accredited agencies, approved
persons, or a State archive 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
[[Page 54114]]
expires. It must also, under the oversight of the accrediting entity,
transfer its pending Convention cases and adoption records. When the
agency or person is unable to transfer such Convention cases or
adoption records, the accrediting entity must, after consultation with
the Secretary, take appropriate action to assist the agency or person
in transferring its Convention cases and adoption records.
(d) The accrediting entity must immediately notify the Secretary in
writing when it takes an adverse action that impacts the accreditation
or approval status of an agency or person.
Sec. 96.78 Petitions to terminate adverse action by the accrediting
entity.
(a) If the accrediting entity takes adverse action against an
agency or person, the agency or person must petition the accrediting
entity to terminate the adverse action, on the grounds that the
deficiencies necessitating the adverse action have been corrected,
before it can seek judicial review. The accrediting entity may
terminate the adverse action 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. If the accrediting entity
does not terminate the adverse action after being petitioned to do so
in accordance with this paragraph, the agency or person may seek
judicial review of the adverse action.
(b) If the accrediting entity described in paragraph (a) 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.
(c) 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 (a) of this section, the
agency or person must reapply for accreditation or approval if it
wishes to become accredited or approved again. 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. 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.
(d) 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.
Sec. 96.79 Administrative or judicial review of adverse action by the
accrediting entity.
(a) There is no administrative review of an adverse action by an
accrediting entity.
(b) Section 202(c)(3) of the IAA (Pub. L. 106-279, Sec. 202(c)(3),
42 U.S.C. 14922(c)(3)) provides for judicial review of adverse actions
by an accrediting entity. 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 (Pub. L. 106-
279, Sec. 202(c)(3), 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 may 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 subpart L of this part 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 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 the
action directed by the Secretary.
(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 further U.S. foreign policy or national security
interests;
(2) Will protect the ability of U.S. citizens to adopt children
under the Convention; or
(3) Will protect the interests of children.
(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.
An agency or person may petition the Secretary for relief from the
Secretary's suspension or cancellation of its accreditation or
approval. If the Secretary is satisfied that the deficiencies or
circumstances that led to the suspension or cancellation have been
corrected or are no longer applicable, 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
[[Page 54115]]
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 notify the
Permanent Bureau of the Hague Conference on Private International Law
of the reinstatement.
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:
(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, ``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.
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.
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, it must, under the oversight of
the accrediting entity, 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, the accrediting
entity must, after consultation with the Secretary, take appropriate
action to assist the agency or person in transferring its Convention
cases and adoption records.
Sec. 96.88 Review of suspension, cancellation, or debarment by the
Secretary.
(a) There is no administrative review of an action by the
Secretary.
(b) Section 204(d) of the IAA (Pub. L. 106-279, Sec. 204(d), 42
U.S.C.14924(d)) provides for judicial review of final actions by the
Secretary. 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 (Pub. L. 106-279,
Sec. 204(d), 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 in subpart N of this part and, as provided for in Sec.
96.110, reports on temporarily accredited agencies must comply with
subpart M of this part.
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 the following
information available to the public on a quarterly basis:
(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;
(2) A summary of the accreditation or approval study of an agency
or person, in a format approved by the Secretary; and
(3) If an agency or person has been subject to withdrawal of
temporary accreditation, suspension, cancellation, refusal to renew
accreditation or approval, or debarment, a brief statement of the
reasons for the action.
[[Page 54116]]
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 a complaint was received against an accredited
agency or approved person and, if so, provide information about the
status of the complaint, including whether it was found to be
substantiated or not;
(b) The accrediting entity must have procedures for disclosing
information about complaints that are substantiated and those that are
not 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 quarterly reports to the Secretary that summarize for the entire
quarter 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;
(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 subpart N of this part 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 in this subpart
may apply for temporary accreditation which 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
subpart N of this part, 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 non-profit tax treatment under section
501(c)(3) of the Internal Revenue Code of 1986, as amended, or for non-
profit 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 (Pub. L. 106-279, section 104, 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 is 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 satisfaction of the
accrediting entity that it has a comprehensive plan for applying for
and achieving full accreditation before the agency's
temporaryaccreditation 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. Applications for
temporary accreditation that are filed after the transitional
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
[[Page 54117]]
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 subpart N of this part, 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 deadline 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
deadline 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, 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. Theaccrediting entity must, to
the extent possible, advise the agency or person 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 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 the temporarily accredited agency is
provided to the Permanent Bureau of the Hague Conference on
PrivateInternational 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
[[Page 54118]]
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, it its discretion, that
it must conduct a site visit to investigate a complaint or other
information or otherwise monitor the agency. In such a case, 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.
(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
and using supervised providers in the United States or in another
Convention country, it complies with the standards in Sec. Sec. 96.44,
96.45 and 96.46;
(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 Hague 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 cases and adoption records if it
ceases to provide or is no longer permitted to provide adoption
services in Convention cases;
(l) The agency is making continual progress towards completing the
process of obtaining full accreditation by the time its temporary
accreditation expires; and
(m) 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. 96.105 Adverse action against a temporarily accredited agency by
an accrediting entity.
(a) If at any time 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. 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, provide the agency with an opportunity to correct the
deficiencies warranting withdrawal.
(b) The provisions of Sec. Sec. 96.25 and 96.26 govern requests
for and use of information.
(c) The accrediting entity must immediately notify the Secretary in
writing when it withdraws an agency's temporary accreditation.
Sec. 96.106 Review of the withdrawal of temporary accreditation by an
accrediting entity.
(a) There is no administrative review of a decision by an
accrediting entity to withdraw an agency's temporary accreditation.
(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 (Pub. L. 106-279, section 202(c)(3), 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 or the person
resides to set aside the adverse action imposed by the accrediting
entity. The United States district court may review the adverse action
in accordance with 5 U.S.C. 706. When an 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 his or her 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 further U.S. foreign policy or national security
interests;
(2) Will protect the ability of U.S. citizens to adopt children
under the Convention; or
(3) Will protect the interests of children.
(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 (Pub. L. 106-279, section 204(d), 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
[[Page 54119]]
IAA (Pub. L. 106-279, 204(d), 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,
under the oversight of the accrediting entity, transfer its Convention
adoption cases and adoption records to other accredited agencies,
approved persons, or a State archive, as appropriate.
(b) Where the agency is unable to transfer such Convention cases or
adoption records, the accrediting entity must, after consultation with
the Secretary, take appropriate action to assist the agency in
transferring its Convention cases and adoption records.
(c) When an agency's temporary accreditation is withdrawn, 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 all 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.
(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: August 27, 2003.
Richard Armitage,
Deputy Secretary of State, Department of State.
[FR Doc. 03-22650 Filed 9-12-03; 8:45 am]
BILLING CODE 4710-06-P
