Rule: Intercountry Adoption Act of 2000: Hague Convention&#8212 Agency Accreditation and Person Approval

Wednesday,
February 15, 2006
Part II
Department of State
22 CFR Parts 96, 97, and 98
Hague Convention on Intercountry
Adoption; Intercountry Adoption Act of
2000; Accreditation of Agencies; Approval
of Persons and Intercountry Adoption—
Preservation of Convention Records; Final
Rules
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8064 Federal Register / Vol. 71, No. 31 / Wednesday, February 15, 2006 / Rules and Regulations
DEPARTMENT OF STATE III. Overview of Major Changes and Convention were introduced in both the
Provisions in the Final Rule Senate and the House of Representatives
22 CFR Part 96 A. Primary Providers and Supervised in 1999 and were subsequently referred
Providers to the appropriate committees. The
[Public Notice 5296] B. Accreditation and Approval Standards
C. Complaint Registry
Senate Foreign Relations Committee
RIN 1400–AA–88 held hearings on October 5, 1999, and
IV. Section-by-Section Discussion of
Comments issued a committee report on S. 682
Hague Convention on Intercountry (Report of the Senate Committee on
V. Regulatory Review
Adoption; Intercountry Adoption Act of Foreign Relations on the Intercountry
A. Regulatory Flexibility Act/Executive
2000; Accreditation of Agencies; Order 13272: Small Business Adoption Act of 2000, 106th Cong. 2nd
Approval of Persons B. The Small Business Regulatory Sess., S. Rep. No. 106–276 (2000)). The
AGENCY: Department of State. Enforcement Fairness Act of 1996 House International Relations
C. The Unfunded Mandates Reform Act of Committee held hearings on H.R. 2909
ACTION: Final rule. 1995 on October 29, 1999, and also issued a
SUMMARY: The Department of State (the
D. Executive Order 13132: Federalism
E. Executive Order 12866: Regulatory
committee report. (Report of the House
Department) is issuing a final rule on Review Committee on International Relations on
the accreditation and approval of F. Executive Order 12988: Civil Justice the Intercountry Adoption Act, 106th
agencies and persons in accordance Reform Cong. 2nd Sess., H.R. Rep. No. 106–691
with the 1993 Hague Convention on G. The Paperwork Reduction Act of 1995 (2000)).
Protection of Children and Co-operation H. Congressional Review On September 20, 2000, the Senate
in Respect of Intercountry Adoption (the I. The Treasury and General Government gave its advice and consent to the
Convention) and the Intercountry Appropriations Act of 1999—Assessment ratification of the Convention and, at
Adoption Act of 2000 (the IAA), after of Federal Regulations and Policies on about the same time, Congress enacted
review of public comments received in Families the implementing legislation for the
response to the Department’s September Final Rule Convention, the Intercountry Adoption
Subpart A—General Provisions
15, 2003 issuance of a proposed rule. Subpart B—Selection, Designation, and
Act of 2000 (the IAA)), Public Law 106–
The Convention and the IAA generally Duties of Accrediting Entities 279, 42 U.S.C. 14901–14952. Consistent
require that agencies and persons be Subpart C—Accreditation and Approval with U.S. policy on ratification of
accredited or approved to provide Requirements for the Provision of treaties and the Senate’s advice and
adoption services for intercountry Adoption Services consent to ratification, the United States
adoptions when both countries involved Subpart D—Application Procedures for will not ratify the Convention until the
are parties to the Convention, and the Accreditation and Approval United States is able to carry out its
IAA requires that the Department Subpart E—Evaluation of Applicants for obligations under the Convention (See
designate one or more qualified Accreditation and Approval Senate Declaration for Convention
accrediting entities to accredit and Subpart F—Standards for Convention Article 22(2) (146 Cong. Rec. S8866
Accreditation and Approval
approve agencies and persons. Today’s Subpart G—Decisions on Applications for
(daily ed. Sept. 20, 2000)). Thus,
new action establishes the accreditation Accreditation or Approval although this Final Rule is effective in
and approval standards for agencies and Subpart H—Renewal of Accreditation or 30 days, except as otherwise indicated
persons that accrediting entities will Approval in the text of the rule, the Convention
use; establishes requirements applicable Subpart I—Routine Oversight by will not enter into force immediately
to potential accrediting entities; and Accrediting Entities upon passage of the 30 days.
establishes a framework for the Subpart J—Oversight Through Review of The Convention gives party countries
Department’s oversight of accrediting Complaints a choice about whether to rely
entities, agencies, and persons. This Subpart K—Adverse Action by the exclusively on public authorities or to
action is a necessary step toward Accrediting Entity use private bodies to complete certain
Subpart L—Oversight of Accredited
bringing the Convention into force for Central Authority functions listed in the
Agencies and Approved Persons by the
the United States. Secretary
Convention. If the Convention country
DATES: This rule is effective March 17, Subpart M—Dissemination and Reporting chooses to use private bodies, the
2006. Information about the date the of Information by Accrediting Entities private bodies must be accredited
Convention will enter into force is Subpart N—Procedures and Standards agencies (nonprofit adoption service
indicated in the text of the final rule. Relating to Temporary Accreditation providers) or approved persons (for-
FOR FURTHER INFORMATION CONTACT: profit and individual adoption service
I. Background providers). The Senate’s advice and
Corrin Ferber at 202–736–9172 or Anna
Mary Coburn or Lisa Vogel at 202–736– The Convention is a multilateral consent to the ratification of the
9081. Hearing- or speech-impaired treaty that provides a framework of Convention, taken together with the
persons may use the safeguards for protecting children and IAA, establish that the United States
Telecommunications Devices for the families involved in intercountry will use accredited agencies and
Deaf (TDD) by contacting the Federal adoption. It was developed under the approved persons (referred to within
Information Relay Service at 1–800– auspices of the intergovernmental this preamble as ‘‘adoption service
877–8339. organization known as the Hague providers’’ where appropriate) to
Conference on Private International Law perform certain U.S. Central Authority
SUPPLEMENTARY INFORMATION:
(the Hague Conference). functions under the Convention. Other
I. Background The United States signed the Central Authority functions will be
II. The Department’s Implementation of the Convention on March 31, 1994, and the performed, as appropriate, by the
Convention and the IAA President transmitted the Convention to
A. Accrediting Entities
Department or by other governmental
B. Accreditation and Approval Standards the Senate for its advice and consent on authorities such as the Department of
C. Enforcement June 11, 1998. (S. Treaty Doc. 105–51 at Homeland Security (DHS).
D. Concerns About Conduct in Convention III (1998)). Differing versions of The purpose of this final rule is to
Countries implementing legislation for the establish the regulatory framework for
Federal Register / Vol. 71, No. 31 / Wednesday, February 15, 2006 / Rules and Regulations 8065
the accreditation and approval function countries party to the Convention. A approval. These purposes are to protect
required under the Convention and the number of commenters expressed a the rights of, and prevent abuses against,
IAA. In developing the rule, we variety of concerns about the participants in the adoption process in
conducted an extensive preliminary Department’s approach to implementing Convention cases, and to ensure that
public input phase, discussed at the Convention and the IAA through an such adoptions are in the children’s best
http://www.hagueregs.org, to garner accreditation scheme that relies on interests. In addition, the IAA seeks to
adoption community input and to accrediting entities selected by the improve the ability of the Federal
engage in a dialogue with stakeholders. Department to oversee and monitor Government to assist prospective
On September 15, 2003, the Department adoption service providers. In response adoptive parent(s) in Convention cases
published in the Federal Register a to those concerns, we want to reiterate involving the United States.
proposed rule on the accreditation and the guiding principles behind this rule The standards in subpart F are based
approval of agencies and persons (68 FR and the Federal accreditation scheme it on the Convention and the IAA,
54064). For a more detailed discussion creates. particularly section 203(b). Where the
of the Convention, the IAA, and the Convention or the IAA speaks broadly,
A. Accrediting Entities we have also sought to reflect current
Department’s basis for the rule, see the
preamble to the proposed rule. The Many commenters essentially norms in adoption practice, as made
Department held a further meeting on objected to the use of accrediting known to us during the development of
October 28, 2003 to answer questions entities, preferring the Department to the rule.
regarding the proposed rule. The initial assume direct responsibility for In particular, the standards in subpart
60-day deadline for submitting accreditation of agencies and approval F reflect a focus on ensuring that
comments was extended 30 days, to of persons. It would be inconsistent agencies and persons provide adoption
December 15, 2003. with the IAA, however, for the services with an individual child’s best
Since issuing the proposed rule, the Department to assume such a role. The interests as the foremost goal. The
Department has also initiated a selection IAA accreditation scheme provides for standards also cover key areas of
process to recruit and identify qualified the Department to select and designate concern to adoptees, birth parents, and
accrediting entities to accredit agencies one or more accrediting entities to adoptive parents, such as financial
and approve persons. (The Department perform this function. transparency, ethical conduct in
solicited candidates by mailing Requests Some commenters sought more robust determining if a child is eligible for
for Statements of Interest to the provisions controlling the conduct of adoption and in obtaining medical
adoption licensing and child welfare accrediting entities. The IAA sections records for a child, and sound social
services authorities of each State and to on accrediting entities left the work practices when providing training
all private nonprofit organizations that Department discretion to negotiate by and information to prospective adoptive
had expressed interest in providing agreement how an accrediting entity parent(s). In reviewing the overall
accreditation/approval services. It also will perform its accreditation duties. It impact of the rule on agencies and
posted the information soliciting would be unrealistic and unworkable to persons in light of comments suggesting
statements of interest from qualified address these issues in the rule. We that the standards be loosened, we
candidates on its Web site.) The therefore have included in the final rule retained standards we consider
Department thoroughly reviewed all some provisions that will govern necessary for implementing the
applications received by the deadline of designated accrediting entities, but Convention’s and the IAA’s goals of
April 30, 2004. The Department met much of the conduct of accrediting protecting participants in Convention
with qualified candidates in March 2005 entities will be governed by agreements adoptions.
to begin negotiating agreements to in addition to these regulations. The use Some commenters wanted the
designate accrediting entities. (70 FR of agreements is consistent with the standards in subpart F to be cast as
11306, March 8, 2005). The Department statute and provides the flexibility specific licensing criteria that must be
will publish all agreements designating needed to handle relationships with met in all cases rather than as
accrediting entities in the Federal multiple accrediting entities, which may accreditation standards that must be
Register, as required by the IAA. differ in ways that require different ‘‘substantially’’ complied with. As
Also published in today’s Federal provisions governing their relationships explained in our response to comments
Register is the final rule for part 98 of with the Department. on § 96.27 of subpart E, the Department
title 22 of the CFR. It provides the rule believes that an accreditation model
for the preservation of Convention B. Accreditation and Approval based on substantial compliance is more
records by the Department and DHS. Standards consistent with the regulatory approach
Separate rules, which are still under We received a wide range of public the IAA contemplates. The
preparation, will establish intercountry input on what accreditation/approval performance-based standards created by
adoption procedures under the standards should be excluded from or subpart F (and subpart N) are the type
Convention and the IAA’s amendments added to subpart F of the rule (and of flexible standards common to the
to the Immigration and Nationality Act correspondingly subpart N on accreditation field generally, and thus
(INA). temporary accreditation). Our responses are appropriate for implementing the
to comments on specific standards are IAA. The process of accreditation gives
II. The Department’s Implementation of contained in the section-by-section an accrediting entity discretion to
the Convention and the IAA discussion. We respond here, however, identify problems in an agency’s or
Consistent with the IAA and the to a number of general concerns person’s operations and to provide an
Convention, this rule creates an repeatedly expressed by commenters by opportunity for correction.
accreditation/approval system that does explaining our overall conception of the

not displace State licensing of adoption accreditation standards. C. Enforcement
service providers, but that does create We used the central purposes of the A number of commenters sought to
new Federal requirements for agencies IAA and the Convention as a guide have the Department play a primary role
and persons handling adoption cases throughout the development of the in enforcing substantial compliance by
between the United States and other standards for accreditation and agencies and persons with the
accreditation standards. This view is As Central Authority, the Department accredited/approved primary provider
inconsistent with the IAA, however, may be able to influence another be made responsible for any foreign
which dictates that the primary Convention country’s practices via providers that it selects and uses in the
responsibility for oversight of agencies diplomatic efforts and the provision of country of origin, whether public,
and persons lies with the accrediting technical assistance. It is outside the accredited by the foreign country, or
entities. The accrediting entities will scope of our authority, however, and private and unaccredited.
have discretion to determine which inconsistent with the Convention’s In response to these concerns, we
adverse action is appropriate in light of allocation of responsibilities between a modified §96.14 of subpart C to increase
the particular standards in subpart F (or country of origin and a receiving the supervisory responsibilities of
N) with which the agency or person is country, for us to impose specific rules primary providers in the accreditation
not in compliance. The Department may on Convention countries. Therefore, we context. As discussed below at section
be required to intervene if the have not changed the final rule to cover III, subsection B.4, however, we
accrediting entity, after consultation conduct by other Central Authorities or removed provisions from subpart F that
with the Department, fails, or refuses, to their competent (public) authorities. As would have required a primary provider
take adverse action against an agency or described in section III, subsection A, to assume the legal responsibility for
person. The types of adverse actions and below, however, we have changed the tort, contract, and other civil claims
who can take them (accrediting entities standards U.S. agencies and persons against supervised providers and to
or the Department) under what will need to meet in using private carry liability insurance for its
circumstances are covered in subparts K providers in Convention countries. The supervised providers. The final rule is
and L of the rule. standards, as changed, tie the not intended to have any effect on the
The Department was asked to permit accreditation of agencies and approval allocation of legal responsibility for tort,
‘‘penalties’’ for failure to be in of persons to whether they have contract and other civil claims. We also
substantial compliance with the rule, adequate arrangements in place to added concrete examples at §96.15 of
other than the enforcement mechanisms ensure that, when acting as a primary subpart C to help explain, generally, the
called adverse actions created by the provider, they can provide ‘‘all adoption circumstances that require an adoption
IAA, and to tie the violation of services in cases subject to the service provider to be accredited,
particular standards to particular Convention’’ in a manner consistent temporarily accredited, approved,
penalties. We have not made such with the IAA and the Convention. (See supervised, or exempted.
changes. The rule provides the full IAA section 203(b)(1)(B)). They are not The IAA in section 201(a) provides
range of ‘‘penalty’’ options provided in intended to interfere with the allocation that, if an agency or person is providing
the IAA for disciplining agencies and of responsibilities between countries adoption services ‘‘in connection with a
persons. Because the IAA mandates a party to the Convention. Convention adoption in the United
substantial compliance model of States,’’ it must be accredited, approved,
accreditation, the rule does not require III. Overview of Major Changes and or under the supervision of an
that accrediting entities impose Provisions in the Final Rule accredited agency or approved person
particular penalties for violation of Discussed here are changes and (with limited exceptions set forth in
particular standards. provisions in the final rule that we section 201(b)). The proposed rule
Other commenters raised a number of believe are of particular interest to the established the general principle of a
concerns related to the notice that an public. A more thorough response to primary provider—that is, one
agency or person would receive of an individual comments, and more accredited agency or approved person
adverse action, and the options that an complete discussion of significant responsible for ensuring the provision of
agency or person would have for changes made to the rule in response to all adoption services in the Convention
protesting the imposition of the adverse comments, appears below in the adoption case.
action. While the IAA limits review section-by-section analysis. In addition Under the proposed rule, a primary
procedures that are available, the to changes made in direct response to provider could work with accredited
Department has made a number of comments received by the Department, agencies or approved persons in the
clarifications in the final rule to address we have also made a number of changes United States, or overseas with entities
these concerns. (See the section-by- for technical and policy reasons, the accredited by a Convention country or
section discussion of subparts K and L.) more significant of which are brought to public authorities of a Convention
The rule now clearly provides that an the public’s attention in the section-by- country, without supervising or being
accredited agency or approved person section analysis. We have made an effort responsible for their acts. The primary
will have either notice that it may be to highlight such changes in the general provider also was not responsible for
faced with an adverse action and an discussion at the beginning of each supervising exempted providers or
opportunity to show it is not warranted subpart, with a brief explanation of why public domestic authorities in the
or, if notice is not provided, an the Department considered them United States. The primary provider
equivalent after-the-fact opportunity to necessary. Changes of a purely technical was responsible only for supervising the
show that the action should be nature (for example, changes made to acts of private agencies, persons, or
withdrawn. The rule also clarifies that conform to changes in other sections, for other entities that were providing
the accrediting entity that imposed an grammatical reasons, or to ensure adoption services without any
adverse action can always withdraw the consistency throughout the regulations) Convention accreditation or approval
adverse action, if it determines that the are not exhaustively identified because status.
action was imposed based upon mistake we believe they are self-explanatory. We have kept the requirement in the
of fact or otherwise in error. final rule that the primary provider is
A. Primary Providers and Supervised responsible for all supervised providers

D. Concerns About Conduct in Providers on a case, but we have broadened the
Convention Countries Many commenters were concerned kinds of private entities that the primary
We received many comments about the rule’s coverage of supervised provider must supervise. There are
requesting that the Department address providers, both in the United States and some differences in the standards that
specific problems in countries of origin. overseas. Many urged that the U.S. govern the primary provider’s use of
other providers in the United States and Convention country. This approach was address the issue of consent in
in Convention countries. These chosen to ensure that primary providers determining visa eligibility.)
differences reflect both the structure of do not inappropriately rely on A primary provider will always have
the IAA and the Convention’s allocation accreditation by a foreign Central the option of treating providers of
of responsibilities between Convention Authority as a guarantee of conduct. It services that qualify for verification
countries. The common objective of is consistent with the fact, recognized in under the § 96.46(c) standard as
these standards, however, is to this rule and the IAA, that accreditation supervised providers under § 96.46(a)
implement the goals of the Convention and approval within the U.S. system and (b) instead, assuming that
and the IAA of protecting participants cannot guarantee good conduct. substantial compliance with those
in the adoption process and ensuring The verification requirement in standards is feasible. This might occur,
adoptions are conducted in the best §96.46(c) recognizes, however, that as a for example, if a primary provider has
interests of the child. practical matter, a primary provider will a long-standing supervisory relationship
not be able to supervise with a particular Convention country
1. U.S. Supervised Providers contemporaneously all adoption adoption service provider.
The rule now requires that the services that might occur in a As was the case in the proposed rule,
primary provider ensure that other U.S. Convention country. A limited number primary providers are not required to
accredited agencies or approved persons of adoption services will generally have treat Central Authorities, or other
providing adoption services in a case been performed in a Convention country foreign public authorities, as foreign
are complying with the standards before a U.S. primary provider has been supervised providers. This is consistent
applicable to U.S. supervised providers. identified: In an incoming case (child with the scope of the Department’s
That is, § 96.14(b) now requires that a immigrating to the United States) the authority, and the Convention’s
primary provider treat all other agencies consents to adoption and child allocation of responsibilities.
and persons it is using to provide background study will often have been
adoption services in the United States B. Accreditation and Approval
prepared before intercountry adoption
on a case as supervised providers, Standards
to the United States is specifically
regardless of their accreditation/ contemplated; in an outgoing case (child We received many comments on the
approval status, unless the provider emigrating from the United States) the proposed standards on insurance, social
qualifies as an exempted provider or a home study will often have been service personnel qualifications, blanket
domestic public authority. prepared before the prospective waivers of liability, and the primary
We made this change to the proposed adoptive parent(s) determine that they provider’s liability for its supervised
rule in response to expressed concerns wish to pursue intercountry adoption providers. We want to explain revisions
about how an accrediting entity could from the United States. we have made to those standards in the
evaluate the performance of an agency To recognize these possibilities and to final rule.
or person if, as primary provider, the avoid requiring that such services are re- 1. Standard on Professional Liability
agency or person was not required to performed under supervision—that is, Insurance
supervise any accredited agencies or to avoid creating additional costs and
approved persons that it was using to delaying adoption placements, which The IAA requires that the standards
provide adoption services in a particular could, in turn, disadvantage U.S. include an insurance standard. The
case. If an accrediting entity finds that prospective adoptive parent(s) seeking proposed rule provided that an agency
a primary provider has provided to adopt abroad and children seeking or person maintains insurance in a
inadequate supervision and, as a result, placements—the rule adopts a different minimum amount of no less than
the actions of an agency or person that approach to the primary provider’s $1,000,000 per occurrence, annually. In
the primary provider is using to provide oversight of these services. The standard the preamble to the proposed rule, we
services—whether accredited or set forth in § 96.46(c) requires the solicited comments on the insurance
approved or not—reveal non- primary provider to verify that these provision from insurance experts,
compliance with the standards in these three adoption services, when provided actuaries, associations, and agencies and
regulations applicable to the use of by private, non-governmental providers, persons, and explicitly encouraged
supervised providers, then the were performed in the Convention agencies and persons to have their
accrediting entity may take adverse country consistently with the insurance providers comment on this
action against the primary provider. requirements of the Convention and any provision. We received a number of
other applicable local law. (In many conflicting comments on the insurance
2. Foreign Providers provision, with some commenters
countries all three of these services will
Under the final rule, the primary be performed by public or competent opposing the inclusion of any standard,
provider must now treat all non- authorities, for whom a primary others stating that professional liability
governmental foreign providers, provider is not required to be insurance is simply unavailable, and
including agencies, persons, or entities responsible.) The verification standard others maintaining that, even if
accredited by a Convention country, of § 96.46(c) will reinforce the professional liability insurance were
that it uses to provide adoption services protections in the Convention and U.S. available, the premiums would make it
as supervised providers consistent with law relevant to the performance of these too costly for them to operate. Other
§96.46(a) and (b), unless the foreign three adoption services. (The commenters said insurance would be
provider performs a service qualifying Convention requires, for example, that affordable and available.
for verification under §96.46(c) all home and child background studies In light of the conflicting public
(consents, child background studies and not prepared by a governmental comment on this issue, the Department
home studies). We believe that this authority be prepared under the made good faith efforts to research
approach accommodates our concerns, responsibility of an accredited body, further the issues of availability,
expressed in the preamble to the and that competent authorities of the feasibility, and costs of professional
proposed rule, that primary providers state of origin ensure that consents meet liability insurance for adoption service
would have practical difficulty Convention requirements. U.S. providers. The Department hired an
supervising entities in another governmental authorities will also insurance expert who contacted
adoption service providers, insurance typically was a better prerequisite for providers in the United States) and
brokers and agents, wholesalers, handling intercountry adoption cases § 96.46(c) (Using providers in
insurance industry service organizations than holding an MSW. Convention countries) that would have
and insurers. The report of the In response to these comments we provided for the primary provider to
insurance expert (redacted of revised the standard in the final rule. assume tort, contract, and other civil
confidential business information), The final rule, at §96.37, retains the liability to the prospective adoptive
which helped inform the basis of the qualifications for supervisory social parent(s) for the supervised provider’s
insurance requirement in the final rule, service personnel in the proposed rule. provision of the contracted adoption
is now part of the public record and can Qualifications for non-supervisory services and for maintenance of a bond,
be found at http://www.travel.state.gov/ social service personnel have been escrow account, or liability insurance to
family/adoption. slightly modified to provide for an cover liability risks arising from the use
The Department has determined that MSW, master’s, or a bachelor’s degree in of supervised providers.
it is appropriate in §96.33(h) of the rule any field and prior experience in family Many commenters strongly opposed
to set a standard of a minimum level of and children’s services and adoption. these provisions as impractical and
professional liability coverage in the We have eliminated entirely any unworkable, and some questioned the
amount of $1 million in the aggregate, provision that home study preparers or statutory basis behind them. In their
rather than per occurrence. This child background study preparers have view, a court should be allowed to
standard means that an adoption service an MSW or a master’s degree in a allocate responsibility in any particular
provider should have, at a minimum, a related human service field. circumstance, and the Department
policy that would make available $1 should not attempt to allocate
3. Waivers of Liability
million in coverage annually for all responsibility in the standard. Other
covered claims. We believe that this The proposed rule would have set a commenters questioned the availability
standard is sufficient to protect standard prohibiting adoption service of the kind of insurance contemplated to
adoption service providers, children, providers from asking clients to sign cover the risk of using supervised
and parents, and that the insurance blanket waivers of liability. Prospective providers, especially overseas. A
market is likely to respond to this adoptive parent(s) expressed concerns number of commenters, including
regulation by making such coverage about being asked to sign broad waivers insurance providers and agents, said
available to adoption service providers. of liability as part of their contracts with that insurance coverage for supervised
The rule continues to provide that this agencies and persons. On the other providers would push the cost of
is a minimum standard; the agency or hand, we were also told that waivers are adoption services beyond the reach of
person will have to take into account common to the adoption field, many potential prospective adoptive
whether its individual risk profile particularly in the face of increasing parents, while others said that such
warrants additional professional litigation over the tort of wrongful insurance would be affordable.
liability coverage, or other types of adoption, and were given copies of The final rule does not include these
insurance. sample waivers. Some commenters provisions, or related provisions on
insisted that agencies and persons could indemnification that were proposed at
2. Social Service Personnel not obtain affordable liability insurance §§ 96.45(d) and 96.46(d). Primary
Qualifications unless their contracts with clients providers may choose how to allocate
The proposed rule provided as a identified risks inherent to the adoption risk with their contractual partners—
standard that supervisory social service process and asked clients to assume that is, their supervised providers—
personnel have a master’s degree in those enumerated risks. Other within the framework of existing laws
social work (MSW) or master’s degree in commenters suggested that the on liability. Under this rule, however,
a related human service field (with Department provide a boilerplate waiver primary providers will still be held
some exceptions for those already clause. responsible for their supervision of
working in the field). Non-supervisory We concluded that a standard supervised providers in the accrediting
social service personnel would have to prohibiting blanket waivers is not entity’s assessment of whether they are
hold an MSW or master’s degree, or a warranted, and have revised the providing adoption services in
bachelor’s degree in addition to standard in § 96.39(d) to permit an substantial compliance with this rule,
experience. The proposed rule also agency or person to include a waiver of the IAA, and the Convention.
provided for individuals performing liability, if consistent with applicable
home studies or child background C. Complaint Registry
State law. This approach defers to the
studies to have a minimum of an MSW adoption service provider’s own The provisions of the final rule
or master’s degree in a related human assessment of risks and benefits in related to the Complaint Registry differ
service field. asking a client to sign a waiver, and to from those that appeared in the
Most of the comments that we State law, rather than imposing a proposed rule. The Department still
received strongly opposed any standard Federal standard prohibiting waivers. intends to establish a Complaint
providing for social service personnel, To address the major concerns about Registry to support the accrediting
other than those in supervisory extremely broad waivers that exempt all entities in fulfilling their oversight
positions, to have an MSW or master’s conduct, § 96.39 provides that any such responsibilities and the Department in
degree. A number of comments waivers comply with State law and its own oversight role. The Department
indicated that finding qualified MSWs additionally be limited and specific and at this time no longer intends, however,
for low-paying positions available based on risks that have been discussed that the Complaint Registry will be an
within nonprofit adoption agencies was and explained to the client in the independent entity with which the
next to impossible. Agencies and adoption services contract. Department will have an agreement. As
persons in rural, isolated areas reflected in subpart J on oversight
expressed concern about the general 4. Primary Provider Liability for Acts of through review of complaints, the
lack of MSWs in non-urban locations. Supervised Providers Complaint Registry will be a system
Commenters also indicated that The proposed rule included standards established by the Department to assist
experience with adoption practice in § 96.45(c) (Using supervised the accrediting entities and the
Department in their oversight functions. accreditation, temporary accreditation, intended to preempt State law on
The Department’s current operational or approval can be granted and eligibility for adoption, we have not
plan is for the Complaint Registry to maintained. added a definition of ‘‘adoptability.’’
collect complaints and make them 3. Comment: One commenter requests
Subpart A—General Provisions clarification as to whether the IAA
available to the appropriate accrediting
entity for action. Accrediting entities Subpart A is organized in the same definition of ‘‘adoption’’ is intended to
will be required to establish written way as in the proposed rule, and create a Federal law definition of
procedures for recording, investigating, includes § 96.1 (Purpose); § 96.2 adoption. The commenter suggests that
and taking action on complaints referred (Definitions); and §96.3 (Reserved). the Department define an ‘‘adoption,’’
to them through the Complaint Registry. The Department has made a number for the purposes of the regulations, as
Upon completion of an investigation, of changes to §96.2 (Definitions), in the judicial or administrative procedure
accrediting entities will have to provide response to public comment, which are that establishes a legal parent-child
written notification to the complainant described below. In addition, we have relationship for all purposes between a
and the Complaint Registry of its revised the definition of ‘‘approved minor and an adult who is not already
findings and any actions taken. home study’’ to clarify that a supervised the minor’s legal parent and that
The Department will be able to review provider could also complete a home satisfies the requirements for the minor
complaints and actions taken by the study. We have changed the term child’s (i) immigration to the United
accrediting entity and take independent ‘‘public body’’ to ‘‘public domestic States or (ii) emigration from the United
action if appropriate. The Complaint authority’’ and the term ‘‘public States pursuant to the IAA and other
Registry will maintain records of authority’’ to ‘‘public foreign authority,’’ relevant provisions of the INA and
complaints, track compliance with without making a substantive change in Federal law.
deadlines, generate reports, and perform the definitions, to make the distinction Response: The definition of adoption
other functions as the Secretary between the two terms, which is in the rule is applicable only under
determines appropriate. We believe that primarily geographic, more transparent. these regulations, in the context of the
subpart J provides adequate flexibility to We also added language to the Convention and the IAA. The
assign additional functions to the definition of ‘‘supervised provider’’ to Department does not have authority
Complaint Registry if experience with clarify that the definition applies under the IAA to create a Federal
the system indicates that additional regardless of the local terminology used definition of adoption to be used
functions would be useful or necessary. to refer to private providers, so long as outside of the context of the Convention
the private individual or organization is and the IAA. Overall, the definition of
IV. Section-by-Section Discussion of adoption, for these regulations, is
providing adoption services under the
Comments designed to provide guidance to
supervision and responsibility of a
This section provides a detailed primary provider, and to the definition agencies and persons on what
discussion of comments received on the of ‘‘exempted provider’’ to clarify that constitutes an adoption for Convention
proposed rule, and describes changes such providers are providing services purposes so that they can determine if
made to the proposed rule. Two general within the United States. they must be accredited or approved to
points should be kept in mind in provide adoption services in a particular
reading this discussion. First, we refer Section 96.2—Definitions case. The definition is also useful in
generally to actions of the ‘‘Department’’ 1. Comment: One commenter distinguishing between ‘‘post-
pursuant to the rule. The rule itself recommends that the Department add a placement’’ and ‘‘post-adoption.’’ In
refers to actions of the ‘‘Secretary,’’ as definition for ‘‘accreditation’’ to clarify response to this comment, the
the official named in the IAA, but the that the regulations address Department is not creating a definition
day-to-day exercise of the Secretary’s accreditation only as it relates to of adoption that will have any broader
functions has been delegated and will Convention adoptions. The commenter applicability but it is replacing the term
be exercised by other Department requests that the Department ‘‘formal act’’ with the phrase, ‘‘the
officials, primarily in the Bureau of specifically state that the regulations do judicial or administrative act’’ in the
Consular Affairs. (See § 96.2 of the rule, not affect any voluntary accreditation definition of adoption. This change
defining ‘‘Secretary.’’) Second, process for non-Convention clarifies that the definition defers to
particularly while discussing the intercountry adoptions. State and Convention country choice of
accreditation/approval standards of Response: These regulations do not judicial or administrative procedures for
Subpart F, we frequently talk in terms affect any voluntary accreditation adoption. The definition still requires
of actions that agencies or persons process for non-Convention that the legal relationship between a
‘‘must’’ take and ‘‘requirements’’ they intercountry adoptions. It is not child and his or her former parents be
must meet. Readers should keep in necessary to add a definition of terminated, but is not meant to affect
mind, however, that the accreditation/ ‘‘accreditation’’ to §96.2, however, informal relationships between a child
approval model looks for ‘‘substantial because § 96.12 makes clear that and his or her former parents, such as
compliance’’ with the standards. Thus, agencies and persons need to be those that develop from an open
within the substantial compliance accredited or approved under these adoption, or any State law that allows
framework for accreditation that the regulations only for purposes of a stepparent to adopt a child without
IAA establishes, statements that actions Convention adoptions. terminating the parental rights of the
are required mean that agencies or 2. Comment: One commenter requests stepparent’s spouse, or any State law
persons will have to take such actions that the Department establish a that grants an adopted child inheritance
in order to be judged in full compliance definition of ‘‘adoptability’’ for U.S. rights from a former parent even after a
with the standard in question. The adoptees who are placed legal adoption.
accrediting entities will be responsible internationally. 4. Comment: Many commenters
for developing methods of assessing and Response: Each U.S. State determines request that the Department clarify the
weighting compliance with individual the criteria to use to determine if a child difference between ‘‘post-placement
standards, subject to the Department’s is eligible for adoption in that State. monitoring’’ and ‘‘post-adoption
approval, to determine whether Because these regulations are not services.’’ Another commenter requests
that the Department explicitly state that is one of the enumerated ‘‘adoption requirements. We note that countries of
‘‘post-placement services’’ are services services’’ in the IAA. Post-placement origin that require post-adoption reports
provided by exempted providers in monitoring encompasses services may stop working with U.S. agencies
connection with a Convention adoption. related to evaluating the continuing and persons that cannot produce the
One commenter asks the Department to fitness of the child’s adoptive post-adoption reports. While this is a
clarify whether providing assistance placement. For example, monitoring potentially serious issue, it is not one
with U.S. immigrant visa processing is how a child is adjusting to his or her that can be addressed through the
a post-adoption service or post- new family or visiting the prospective accreditation process or these
placement monitoring. There were adoptive parent(s) to ensure that they regulations.
conflicting comments as to whether or are able to care for the particular needs 6. Comment: Several commenters
not ‘‘post-adoption services’’ include of the child and to determine whether request more specific definitions
the provision of supportive services to the placement is still in the child’s best addressing who can provide adoption
adoptive families to promote the well- interests is post-placement monitoring. services. They want to know if
being of adoptees and families, the If, on the other hand, the post- ‘‘adoption helpers’’ or ‘‘advisors’’ are
stability of adoptive placements, and the placement service is not related to the covered. Another commenter requests
prevention of adoption disruption or adoptive placement, then it is not the that the Department’s definition of
dissolution as well as monitoring and adoption service of ‘‘post-placement ‘‘adoption services’’ be revised to
reporting. monitoring.’’ An agency or person is not exclude simply assisting a country of
performing a post-placement ‘‘adoption origin’s public foreign authority.
Response: Post-placement monitoring
service,’’ for example, if it provides Another commenter requests that the
is an ‘‘adoption service’’ under the IAA.
post-placement counseling to a family. Department define ‘‘adoption services’’
Because of this an adoption service
Assisting with U.S. immigrant visa to include the services of ‘‘unlicensed
provider must be accredited,
processing is not included in Section facilitators’’—individuals that
temporarily accredited, approved, or
3(3) of the IAA’s definition of ‘‘adoption essentially provide adoption services
operate as a supervised provider to
services,’’ and is not an activity that is (like the preparation of adoption
provide post-placement monitoring in a
within the scope of these regulations. paperwork and the arrangement of
Convention adoption case in the United 5. Comment: Some commenters child-matching services for parents in
States. Post-adoption services, however, request that the Department add ‘‘post- foreign countries).
are not adoption services under the IAA, adoption services’’ to the list of Response: Whether the activities of an
and an agency or person would not have adoption services, and hence to the adoption service provider are subject to
to comply with the accreditation/ activities subject to these regulations. the accreditation/approval standards in
approval requirements to perform them One commenter states that its members this rule turns solely on whether the
in a Convention adoption case. To believe post-placement services, private individual or entity is providing
distinguish between post-placement whether provided before or after a defined ‘‘adoption service,’’ and not
monitoring and post-adoption services, legalization of an adoption, should be on the identity of the private individual
the Department has added new provided by qualified personnel. The or entity, the term used to refer to the
definitions of ‘‘post-placement’’ and commenter suggests a revision of the private individual or entity, or the entity
‘‘post-adoption.’’ ‘‘Post-placement’’ is Department’s definition of ‘‘adoption on whose behalf the services are
defined as the period of time after a services’’ to include providing required provided. If people who call themselves
grant of legal custody or guardianship of periodic reports to the child’s country of ‘‘adoption helpers’’ or ‘‘advisors’’ are
the child to the prospective adoptive origin, or any other post-adoption performing in the United States any of
parent(s) or to a custodian for the services required by the child’s country the services enumerated in the adoption
purpose of escorting the child to the of origin. services definition, they must be
identified prospective adoptive Response: Section 3(3) of the IAA, accredited, temporarily accredited,
parent(s), and before an adoption. An which defines adoption services, does approved or supervised, or exempted
example of ‘‘post-placement not include post-adoption services as an once the Convention goes into force for
monitoring’’ (an adoption service) adoption service. (In fact, while at least the United States. A primary provider
would be a pre-adoption home visit or one draft of H.R. 2909, the bill that must also ensure that, with respect to
report monitoring the child’s adjustment became the IAA, included post-adoption adoption services performed in a
to the new pre-adoptive home. By services in the definition of adoption Convention country, any private
contrast, ‘‘post-adoption’’ means after an services, post-adoption services were individuals or entities it is using to
adoption; in cases in which an adoption not included in the definition in the perform adoption services in a
occurs in a Convention country and is IAA as enacted.) Services provided after Convention case—regardless of identity,
followed by a re-adoption in the United an adoption is dissolved are also not the term used to refer to them, or on
States, it means after the adoption in the ‘‘adoption services,’’ as defined in the whose behalf the services are
Convention country. Any of the IAA, because they are provided after an performed—are supervised, unless they
following would be examples of a ‘‘post- adoption has occurred, so they are post- are performing a service qualifying for
adoption service,’’ if provided after the adoption services. verification under § 96.46(c). Examples
child’s adoption: providing mental and Some of the comments on this issue of different adoption services, and
physical health services for the adopted reflected a concern about ensuring instances in which providers of such
child; providing assistance in filling out compliance with post-adoption services must be accredited, temporarily
post-adoption reports required by reporting requirements imposed by accredited, approved, supervised, or
certain Convention countries; and countries of origin, particularly if exempted, have been added to the
sponsoring support groups for adopted parents are unwilling to cooperate, or do regulation to help clarify this point in
children or adoptive parents. The not maintain contact with agencies and § 96.15 of subpart C.
Department understands that there is persons. The Department encourages 7. Comment: One commenter requests
also some confusion over which post- agencies and persons involved in that the Department clearly define
placement services are ‘‘adoption Convention adoptions to comply with ‘‘suspension’’ and ‘‘cancellation’’ as
services.’’ ‘‘Post-placement monitoring’’ all applicable post-adoption reporting they relate to adverse actions against
accredited agencies and approved These examples are not an exhaustive relevant to the accreditation/approval
persons. Specifically, the commenter list of ‘‘child welfare services.’’ The process.
asks whether an accredited agency or definition of ‘‘child welfare services’’ is 11. Comment: Some commenters
approved person will have to transfer its not limited to public child welfare question how the Complaint Registry
adoption cases to another entity during agencies. Private organizations, such as will be established.
a period of ‘‘suspension.’’ The the YMCA, are exempt from the Response: The Department has
commenter requests that the Department accreditation/approval process if they modified the definition of ‘‘Complaint
replace the term ‘‘suspension’’ with only provide services for children or Registry’’ (§ 96.2) to make it clear that it
‘‘probation, with required corrective parents that are not adoption services. will be a system created by the
action’’ to clarify that the accredited 9. Comment: One commenter seeks Department intended to receive,
agency or approved person does not clarity for the definition of ‘‘exempted distribute, and monitor complaints
have to transfer its cases while provider.’’ relevant to the accreditation or approval
correcting noted problems. Response: ‘‘Exempted providers’’ and status of agencies and persons. The
Response: The Department has not ‘‘exempted activities’’ are explained in functions of the Complaint Registry are
substituted ‘‘probation, with required more detail in the subpart C of this final addressed in § 96.70 of subpart J.
corrective action’’ for ‘‘suspension’’ rule. We have changed the definition of 12. Comment: Commenters suggest
because suspension is the term used in ‘‘exempted provider’’ to clarify that a that the Department add a definition of
the list of adverse actions contained in social work professional or an the term ‘‘displacement’’ to § 96.2,
§ 202(b)(3) of the IAA. Nor have we organization may perform a home study defining displacement as the placement
added definitions of suspension and or a child background study (or both) in of an adoptee in an out-of-home care
cancellation to subpart A, because the the United States in a Convention environment without terminating
consequences of suspension and adoption, as an exempted provider, as parental rights, for example, so that the
cancellation are adequately explained in long as the social work professional or child may receive, for example, mental
subpart K. Section 96.77 of subpart K organization is not currently providing health in-patient treatment.
provides that the suspended agency or and has not previously provided any Response: Because what the
person must consult with the other adoption service in the same case. commenters describe as ‘‘displacement’’
accrediting entity about whether or not The definition is consistent with § 96.13 would occur post-adoption, and thus
a particular suspension requires that an of subpart C. See responses to comments would fall outside the scope of these
agency or person to transfer all its 1 and 2 in § 96.13. regulations, we have not added a
Convention cases. Please see response to 10. Comment: Several commenters definition of displacement to the rule.
comment 1 on §96.75 for further recommend that the regulations define 13. Comment: Several commenters
information. what constitutes a complaint, so that the request clarification or revision of the
8. Comment: Several commenters number of frivolous complaints will be definitions of ‘‘dissolution’’ and
request that the Department elaborate on limited. Several commenters also ‘‘disruption’’ in § 96.2. One commenter
the definition of ‘‘child welfare recommend that the word ‘‘complaint’’ suggests that the Department and
services.’’ They note that providers of be changed to the word ‘‘grievance,’’ in Congress (in the IAA) reversed the
these services are exempt from the order to signify a more formal concern, meaning of these terms. Another
accreditation/approval process. One and offer definitions of grievance. commenter requests that the definitions
commenter requests that the Department Several commenters also recommend of ‘‘disruption’’ and ‘‘dissolution’’ be
provide more specific examples of that the regulations require complaints revised to state explicitly that a
providing child welfare services. to be filed in writing. One commenter disruption or dissolution must be
Another commenter asks whether the further requests that the regulations be included in the overall statistics of
definition is limited only to services amended to reflect that anonymous adoption failures only if it occurs while
provided by public child welfare complaints may not be filed. an adoptee is physically residing with a
agencies or whether it also includes Response: We have not added a family in their home at the time of the
broader services such as after-school definition of complaint, but have made disruption or dissolution. Similarly,
activities, YMCA programs, or summer other changes to the final rule to another commenter is concerned that
respite. respond to the concerns expressed, in the Department’s definition of
Response: ‘‘Child welfare services’’ the definition of ‘‘Complaint Registry,’’ ‘‘disruption’’ is too broad and could
are defined in § 96.2 as services, ‘‘other in § 96.41, and in subpart J. Section force agencies and persons to generate
than those defined as ‘‘adoption 96.41 now makes clear that complaints reports in cases in which the disruption
services,’’ which are designed to must be signed and dated to be lodged had benign causes. One commenter
‘‘promote and protect the well-being of with an agency or person, and must suggests that the definition of
a family or child.’’ Thus, when refer to activities or services that the ‘‘disruption’’ should be revised to
attempting to decide what constitutes a complainant believes raise an issue of address more specifically the
‘‘child welfare service,’’ it is necessary compliance with the Convention, the ‘‘disruptions that occur after a child has
first to determine if the service is an IAA, or the regulations implementing left his or her country of origin.’’ A
‘‘adoption service.’’ If not, then the the IAA. Subpart J similarly now makes commenter suggests the following
service could be a ‘‘child welfare clear that complaints that may be filed definitions: ‘‘ ‘Disruption’ means
service.’’ Some examples of child through the Complaint Registry are adoptive placement that does not
welfare services are: providing mental written documents submitted by a finalize in an adoption. ‘Dissolution’
or physical health services for adoptive complainant that concern an accredited means dissolving the adoptive
parents or adoptees; promoting adoption agency or approved persons (including placement through termination of
through general programs, but not their use of supervised providers), and parental rights.’’
providing adoption services in specific that raise an issue of compliance with Response: In defining ‘‘disruption’’ to
cases; conducting support groups for the Convention, the IAA, or the refer to an interrupted adoptive
adoptive parents or adoptees; and regulations implementing the IAA. An placement, the Department followed
providing temporary foster care for agency or person’s response to other § 104(b)(3) of the IAA, which used
children who are awaiting adoption. kinds of ‘‘complaints’’ will not be ‘‘disruption’’ in the same manner. We
also believe that the majority of people primary provider. Please see response to accrediting entities by the Secretary);
involved with intercountry adoptions comment 1 for § 96.14. We also believe § 96.5 (Requirement that accrediting
use the terms ‘‘disruption’’ and that the definitions of ‘‘public foreign entity be a nonprofit or public entity);
‘‘dissolution’’ as we have defined them. authority’’ and ‘‘competent authority’’ § 96.6 (Performance criteria for
Therefore, the Department is not are adequate to refer to public designation as an accrediting entity);
changing the definitions of ‘‘disruption’’ authorities of Convention countries. § 96.7 (Authorities and responsibilities
and ‘‘dissolution’’ to, in effect, reverse 15. Comment: A commenter requests of an accrediting entity); § 96.8 (Fees
them. that the Department make clear, in the charged by accrediting entities); § 96.9
The Department has, however, revised definition of ‘‘legal services,’’ that it is (Agreement between the Secretary and
the definition of ‘‘disruption’’ and has not regulating the actions of foreign the accrediting entity); § 96.10
modified related definitions and attorneys. The commenter also cautions (Suspension or cancellation of the
reporting requirements, to clarify when the Department that it cannot regulate designation of an accrediting entity by
a ‘‘disruption’’ will need to be reported. attorneys licensed in the United States the Secretary); and § 96.11 (Reserved).
‘‘Disruption’’ is now defined to mean because they are regulated by the States. We have made a number of changes
the interruption of a placement for Thus, the commenter believes that the to this subpart in response to public
adoption during the ‘‘post-placement’’ Department is incorrect when it asserts comment, including changes to §§ 96.6,
period. ‘‘Post-placement’’ now is (in the preamble to the proposed rule) 96.7, and 96.10, which are discussed
defined so that a ‘‘disruption’’ will need that a lawyer who secures necessary below. We also deleted from § 96.4(a)
to be reported only when it takes place consents to the termination of parental material on soliciting accrediting
after legal custody or guardianship of rights and to adoptions in Convention entities that is no longer relevant and
the child has been transferred to the cases must be approved or must secure made additional clarifying corrections
prospective adoptive parent(s) or a the consents as part of, or under the to § 96.4(a), to make plain that
custodian for transport to the supervision and responsibility of, an accrediting entities will be designated
prospective adoptive parent(s), but accredited agency, temporarily by the Department in an agreement that
before the adoption is completed. Thus, accredited agency, or an approved will also govern operations of the
an agency or person would not need to person. accrediting entity. Finally, we made
report a ‘‘disruption’’ if a prospective Response: The IAA and these conforming changes to § 96.7(b), to
adoptive family decided not to pursue regulations are not intended to preempt ensure consistency with changes made
an adoption during an informal State laws regarding licensing of to the definition of Complaint Registry
placement pending transfer of legal attorneys; on the other hand, under the in § 96.2 and to subpart J.
custody of the child. On the other hand, IAA, persons, including lawyers, who
provide adoption services in the United Section 96.4—Designation of
a ‘‘disruption’’ would need to be
States, as opposed to legal services, Accrediting Entities by the Secretary
reported if it happened after legal
custody or guardianship of the child must comply with the IAA. Section 1. Comment: Several commenters are
was transferred, even if the child had 201(b)(3) of the IAA states that the concerned that having too few
not yet left his or her country of origin. provision of legal services by a person accrediting entities will create a
We have also modified the definition ‘‘who is not providing any adoption monopoly, with accrediting entities
of ‘‘dissolution’’ to reflect the addition service in the case’’ is exempt from the charging exorbitant accrediting fees and
to § 96.2 of a definition of ‘‘post- accreditation/approval requirements. possibly putting smaller agencies out of
adoption,’’ and to respond to the The exemption does not apply, business. Other commenters encourage
suggestion that we make specific however, if the attorney is providing the Department to limit the number of
reference to termination of parental (non-exempt) adoption services in the accrediting entities to avoid accrediting
rights. The final rule defines case. An adoption service, as defined in entities competing for the business of
‘‘dissolution’’ to be the termination of the IAA, provided by a U.S. attorney, or the very people they are supposed to be
the adoptive parent(s)’ parental rights through a U.S. accredited/approved regulating.
after an adoption. provider’s use of the services of a Response: Section 202(a)(1) of the
14. Comment: One commenter foreign attorney, in connection with a IAA states that the ‘‘Secretary shall
requests that the Department add to Convention case would need to enter into agreements with one or more
§ 96.2 a definition of a foreign provided in compliance with any qualified entities’’ that will perform the
Convention ‘‘accredited body.’’ Another applicable requirements of the IAA and duties of an accrediting entity (emphasis
commenter similarly suggests adding a these regulations, regardless of any added). The IAA permits public entities
definition for ‘‘foreign partner professional standards or licensing or to act as accrediting entities in part to
providers’’—entities accredited or other laws that would also govern the increase the number of possible
approved by a Convention country and actions of the attorney. We note, accrediting entities. (See IAA section
providing one or more adoption services however, that the rule would allow a 202(a)(2)(B)). The Department has used
in a Convention case. The commenter primary provider to treat a foreign extensive outreach efforts to solicit a
also recommends defining ‘‘foreign attorney that provided only the broad pool of interested parties to apply
governmental partner providers,’’ as adoption service of obtaining consents to become accrediting entities. We will
public authorities of a Convention in a Convention country as either a not know the actual, final number of
country (excluding courts) providing supervised provider, consistent with accrediting entities until we are able to
one or more adoption services in a §§ 96.45(a) and (b), or as performing a enter into agreements with qualified
Convention case. service qualifying for verification under applicants, but it is clear the number
Response: The Department believes § 96.46(c)). will be small, at least initially. There is
that it is unnecessary to add a definition no reason at this time to limit the

for foreign accredited bodies or ‘‘foreign Subpart B—Selection, Designation, and number by regulation. The quality and
partner providers.’’ Subpart C explains Duties of Accrediting Entities fairness of the accrediting entities will
when foreign providers accredited by a Subpart B is organized in the same not be addressed by the number of such
Convention country must operate under way as in the proposed rule, and entities but by the Department
the supervision and responsibility of a includes § 96.4 (Designation of designating accrediting entities that are
qualified under the IAA and that meet The Department is required to take the response to comment 7 on this section,
the criteria established in these direct action of suspension or below, that the conferral of accreditation
regulations and through the cancellation against an accredited or approval does not make an
Department’s ongoing oversight, agency or approved person only if the accrediting entity responsible for any
including its oversight of accreditation accrediting entity has failed or refused, acts of any entity providing services in
fees, which under the IAA and these after consultation with the Department, connection with a Convention adoption
regulations may not exceed the costs of to take appropriate enforcement action and does not guarantee that in any
accreditation. itself. specific case an accredited agency or
2. Comment: Some commenters are 5. Comment: Some commenters approved person is providing adoption
concerned that the Department did not request that the Department prohibit services consistently with the
provide public entities enough time or current State licensing authorities from Convention, the IAA, the regulations
information to allow them to submit becoming accrediting entities. One implementing the IAA, or any other
Statements of Interest to become commenter suggests that these public applicable law.
accrediting entities. These commenters domestic authorities have not been 6. Comment: Commenters recommend
suggest that the Department should responsive in the past to the concerns of that the Department add a mechanism
individually contact all public entities adopting parents. A commenter also for the public to challenge a decision by
that do adoption licensing and invite asserts that the IAA was enacted in part the Department to designate or not
them to apply. Similarly, many because States were unable to regulate designate a public domestic authority or
commenters want the regulations to adoption effectively, and apparently is nonprofit organization as an accrediting
mandate that every State licensing concerned that state licensing entity.
authority act as an accrediting entity for authorities that are accrediting entities Response: The Department’s selection
Convention purposes. will assert sovereign immunity, or in of accrediting entities is committed to
Response: The IAA does not authorize any event will not accord ‘‘consumers’’ the Department’s discretion. Moreover,
the Department to require all qualified sufficient ‘‘due process.’’ This section 504 of the IAA provides that the
public entities to become accrediting commenter seems to contemplate suits Convention and the IAA shall not be
entities, but the Department did contact against accrediting entities by construed to create a private right of
each relevant State authority and ‘‘consumers’’ rather than the kind of action to seek administrative or judicial
encourage it to apply to become an judicial review of adverse action relief, except to the extent expressly
accrediting entity. The Department specifically addressed by the IAA. provided in the IAA. Once the
expects to provide additional open Response: As stated above, the IAA
Department has signed an agreement
application periods for public entities or permits qualified public entities to
with an accrediting entity, however,
private nonprofit entities to apply to become accrediting entities and the
become accrediting entities at a future Department intends to consider anyone will be able to submit a
time. qualified public entities as potential complaint regarding an accrediting
3. Comment: Commenters believe that accrediting entities. The Department entity directly to the Department.
the Department should not delegate the believes the commenters’ concerns Section 96.10(a) of these regulations
function of accrediting agencies and about the likely responsiveness of requires that such complaints be
approving persons to accrediting public entities will be addressed by the considered in determining whether an
entities. These commenters suggest that Department designating public entities accrediting entity’s designation should
the Department should act as the single as accrediting entities only if they be suspended or canceled.
accrediting entity for all agencies and demonstrate that they are qualified 7. Comment: Potential accrediting
persons, in order to bring uniformity to under the IAA and can meet the criteria entities suggest that the Department add
the application of accrediting standards established in these regulations. The a provision to § 96.4 to limit the liability
and promote an emphasis on the best Department will also maintain ongoing of accrediting entities. Without such a
interests of the children. oversight of all accrediting entities. In provision, potential accrediting entities
Response: The IAA requires that the particular, the Department’s agreements have suggested that it will be difficult to
Department enter into agreements with with the accrediting entities, which will hire or retain evaluators/peer reviewers
qualified public entities or qualified be published in the Federal Register, and that the fees for accreditation will
nonprofit organizations to be accrediting will address accountability of the be significantly higher to cover the risk
entities. The Department cannot act accrediting entities to the Secretary. of third-party litigation.
directly as an accrediting entity. Also, in this regard, the public will be Response: The Department never
4. Comment: Several commenters able to complain about the performance intended that accrediting entities be
recommend that the Department, rather of any accrediting entity to the responsible for third-party tort claims,
than an accrediting entity, investigate Department, and the Department will be and does not believe that the IAA
allegations of improper conduct able to suspend or cancel the suggests that they should be. While we
involving agencies and persons designation of any accrediting entity, as have not revised § 96.4, we have added
overseas. set forth in § 96.10 of the rule. As well, language to § 96.12 to underscore that
Response: Under the IAA, accrediting subpart J ensures that the Department conferral and maintenance of
entities are given primary responsibility will be able to oversee the performance accreditation, temporary accreditation,
for overseeing the conduct of the of all accrediting entities in resolving or approval is not tantamount to a
agencies and persons they accredit or complaints against adoption service guarantee that adoption services in
approve. As explained in the response providers. As for the concern about specific cases are performed
to comment 1 on § 96.6, below, the sovereign immunity and the ‘‘due consistently with the Convention, the
accrediting entity will be responsible for process’’ rights of ‘‘consumers,’’ nothing IAA, the regulations implementing the
monitoring agencies it accredits or in these regulations is intended to create IAA, or any other applicable law but
temporarily accredits and persons it rights vis-à-vis any accrediting entity, rather establishes only that the
approves, including by monitoring their whether public or private nonprofit. accrediting entity has concluded that
use of all supervised providers, Consistent with this, we have made the agency or person provides services
including foreign supervised providers. clear in § 96.12, as discussed in the in substantial compliance with the
applicable standards set forth in this accrediting entities will have the organizations will not have
part. opportunity to demonstrate that they inappropriate influence on an
8. Comment: Two commenters suggest meet the IAA criteria and that they have accrediting entity, and that the
that an agency, person, or other the capacity to perform the duties of an accrediting entity has conflict-of-interest
interested party should have the accrediting entity. policies to address its relationships with
opportunity to file a complaint against 2. Comment: One commenter suggests membership organizations.
an accrediting entity or to challenge the that § 96.5(a) should be removed Response: We have not made the
accrediting entity’s interpretation of a because there is no advantage to suggested change to § 96.6(f), but we
regulation or law. restricting for-profit entities from being have added a new § 96.6(i) providing
Response: The Department will accept accrediting entities. that the accrediting entity must prohibit
and collect complaints against Response: The Department is conflicts of interest with any agency,
accrediting entities pursuant to retaining § 96.5(a); its requirements person, or membership organization that
§ 96.10(a). (The Department intends to come directly from § 202(a) of the IAA, includes agencies or persons. With this
post on its website instructions for how under which for-profit private entities addition it should be clear that § 96.6(f)
to submit a complaint against an are not qualified to be accrediting does not bar accrediting entities that are
accrediting entity.) As part of its entities. not public entities from being associated
ongoing oversight responsibility, the with membership organizations, which
Section 96.6—Performance Criteria for
Department will investigate and we have been told can play a valuable
Designation as an Accrediting Entity
consider any complaints against an role in helping to identify and maintain
accrediting entity when determining 1. Comment: One commenter best practices within the field of
whether an accrediting entity’s recommends that the Department adoption. At the same time, it is critical
designation should be suspended or modify the rule to require an accrediting that accrediting entities be neutral and
cancelled. Please note that the entity to demonstrate that it has the objective in evaluating agencies and
accrediting entities are responsible for ability to monitor the performance of persons and avoid the appearance of
investigating complaints against accredited agencies and approved partiality. Potential problems may be
agencies and persons. persons and their supervised providers. avoided if accrediting entities operate
Section 202(c)(3) of the IAA allows an Response: Section § 96.6(c) already independently of membership
agency or person that has been the required the accrediting entity to organizations with which they are
subject of an adverse action by any demonstrate to the Department that it associated and that include agencies or
accrediting entity to seek Federal court can monitor the performance of persons that provide adoption services.
review to have the adverse action set accredited agencies, temporarily When the Department addresses
aside. For a description of the accredited agencies, and approved conflict-of-interest issues in the
accrediting entity’s role with regard to persons. In addition, the Department agreements with the accrediting entities
terminating adverse actions, see the has modified §§ 96.6(c) and 96.7(a)(4) to under § 96.6(h), it may include specific
responses to comment 1 for § 96.78 and make it explicit that accrediting entities safeguards for accrediting entities’
comment 1 for § 96.79. must demonstrate that they are capable involvement with such membership
of monitoring a primary provider’s use organizations.
Section 96.5—Requirement that of supervised providers. We are aware 3. Comment: Some commenters ask
Accrediting Entity be a Nonprofit or that public entities and nonprofits that the Department expand the conflict-
Public Entity designated as accrediting entities will of-interest provisions of § 96.6(h) and
1. Comment: Some commenters likely have limited capacity to set conflict-of-interest prohibitions
believe that the current language of investigate overseas conduct directly, through rulemaking. Another
§ 96.5 implies that only existing but we still expect them to use all commenter requests that the Department
organizations can become accrediting reasonable means available to them of specifically forbid any board member or
entities (which will only exacerbate the evaluating an accredited agency’s or employee who works with or for an
potential for a monopoly of accrediting approved person’s use of a supervised agency or person or that is related to an
entities). These commenters note that provider overseas. Such means would agency or person from serving as a
§ 96.5 states that an accrediting entity include, but not be limited to, document board member or employee of an
must ‘‘qualify’’ as either a nonprofit review and interviews to check that the accrediting entity. Another commenter
organization or a public entity. They agency or person is complying with the suggests that the conflict-of-interest
have asked for clarification that, in the requirements of § 96.45 for using provisions should prohibit employees of
future, accreditation will be open to supervised providers in the United accrediting entities or volunteer
new organizations as well. They also States and of § 96.46 for using evaluators from becoming employed by
propose the following language: ‘‘An supervised providers in Convention an adoption service provider for at least
accrediting entity must qualify as * * * countries. one year after participating in any
(a) an organization or proposed 2. Comment: A commenter accreditation service for that provider.
organization described in section recommends that the Department revise Response: In response to these
501(c)(3) of the Internal Revenue Code § 96.6(f) insofar as it requires an comments, the Department has modified
of 1986.’’ accrediting entity that is not a public the final rule to include two new
Response: The Department does not entity to demonstrate that it operates conflict-of-interest provisions. First, we
believe there is a need for new language independently of any organization that have added § 96.6(i) to require that an
to cover ‘‘proposed’’ accrediting entities. includes agencies or persons that accrediting entity demonstrate that it
Although the first application period for provide adoption services, noting that prohibits conflicts of interest with
those interested in becoming accrediting membership associations have played a agencies or persons or with any
entities closed on April 30, 2004, there valuable role in the development and membership organization that includes
will be opportunities in the future for support of accrediting entities. The agencies or persons. Second, we added
another round of applications. At that commenter suggests that this section § 96.6(j) to require accrediting entities to
time, any public entities and nonprofits instead permit an accrediting entity to demonstrate that they prohibit
that express interest in becoming demonstrate that membership individuals directly involved with the
site evaluation of a particular agency or cases, and ask that it be removed from to ignore these factors when approving
person from becoming employees or the regulations. One of the commenters fees. In addition, while fees may not
supervised providers of that same believes that this requirement puts exceed the costs of accreditation, it is
agency or person for at least one year. accrediting entities in the awkward possible that some public entities that
Consistent with section 202(a)(1) of the position of having to choose, or make are designated as accrediting entities
IAA, the Department may establish recommendations regarding, which may choose to subsidize the cost of
other appropriate conflict-of-interest agencies and persons should be accreditation in their States, creating
rules in the agreements with accrediting assigned the Convention cases that need additional possible variance in fees. The
entities. to be transferred. The other commenter Department will review and approve
believes that it is essential for an accrediting entity fee schedules for
Section 96.7—Authorities and
accrediting entity to transfer Convention compliance with the IAA’s
Responsibilities of an Accrediting
cases pursuant to § 96.7(a)(8), but requirements. Approved fee schedules
Agency
recommends that the Department will be publicly available, which should
1. Comment: One commenter suggests develop specific criteria for the allow comparison of fees.
that the Department should require that selection of organizations to accept the 2. Comment: Several commenters
accrediting entities investigate and transfer of these cases. suggest that it is difficult to comment on
respond to complaints about the Response: We have modified § 96.7 the fee provisions of the regulations
supervised providers of accredited (and provisions in subparts K, L, and N) because the Department did not provide
agencies and approved persons. so that accrediting entities are a fee schedule or an estimate of the
Response: As described in subpart J of responsible for assisting the Department accreditation fees.
these rules, the Complaint Registry will in taking appropriate action to help the Response: This regulation does not
refer complaints about accredited agency or person transfer its Convention address the actual fees of the accrediting
agencies and approved persons to an cases and adoption records. We now entities, which are not subject to
accrediting entity. If a complaint require in §§ 96.33(e) and 96.42(d) that
involves conduct of a supervised rulemaking, but only the factors the
agencies and persons have a plan to Department will consider in deciding
provider, the accrediting entity will transfer their Convention cases and
need to check whether the accredited whether to approve fee schedules that
adoption records in the event that they the accrediting entities propose. The
agency or approved person that is acting become unable to continue performing
as the primary provider has provided regulation closely tracks the statute,
Convention adoptions. If an agency’s or leaving the Department flexibility to
adequate supervision of its supervised person’s plan fails, § 96.77(c) now
providers. If an accredited agency or approve or disapprove proposed fees in
requires accrediting entities to advise light of the IAA’s requirements. Given
approved person does not provide the Department, which, with the
adequate supervision of its supervised the wide range of possible fee structures
assistance of the accrediting entity, will
providers, it will be out of compliance and the start-up nature of the
coordinate efforts to identify other
with the standards in §§ 96.45 and 96.46 accreditation process, it is not
accredited agencies or approved persons
related to use of supervised providers. practicable to further regulate on this
to assume responsibility for the
The accrediting entity may, if the issue at this time. Nor can the
Convention cases and to transfer the
complaint is supported, take adverse Department predict what the actual
records to other accredited agencies or
action against an accredited agency or approved fees will be after the proposed
approved persons, or to public domestic
approved person for reasons related to fees are reviewed in light of the
authorities, as appropriate.
its use of a supervised provider. Section statutory and regulatory criteria.
Corresponding comments were made to
96.71 requires accrediting entities to §§ 96.87 and 96.109. 3. Comment: A commenter suggests
establish written procedures, including that § 96.8(d), which states ‘‘[n]othing in
deadlines, for recording, investigating, Section 96.8—Fees Charged by this section shall be construed to
Accrediting Entities provide a private right of action to
and acting upon such complaints.
2. Comment: A commenter 1. Comment: One commenter challenge any fee charged by an
recommends that the Department add a requests, for reasons of fairness, that the accrediting entity’’ was the equivalent of
statement to § 96.7(a)(7) to clarify that Department add a provision to the rules ‘‘taxation without representation.’’
accrediting entities are permitted to that mandates that fees for accrediting Response: We have retained § 96.8(d)
report information relating to suspected services will be uniform across because it is consistent with section 504
child abuse to responsible State geographic and jurisdictional of the IAA, which prohibits inferring
authorities. boundaries. On the other hand, another private rights of action under the IAA
Response: The Department does not commenter supports the Department’s and the Convention, except as provided
believe it is necessary to add such decision to permit fees to vary based on by the IAA.
language. Nothing in § 96.7(a) prevents the relative size, geographic location, 4. Comment: A commenter is
an accrediting entity from reporting and volume of Convention cases of an concerned that, while the regulations
suspected child abuse to the appropriate accredited agency or approved person. require accrediting entities to
State authorities, and this section does Two other commenters express concern investigate complaints about accredited
not change State laws regarding about the cost of accreditation. agencies and approved persons, they
mandatory reporting of suspected child Response: Section 202(d) of the IAA provide for the allowable fees for such
abuse. Furthermore, § 96.72(b)(3) requires that, in approving the fees set investigatory services to be
requires an accrediting entity, after by an accrediting entity, the Department predetermined and published in the fee
consultation with the Department, to ‘‘consider the relative size of, the schedule pursuant to § 96.8, the
refer to law enforcement authorities any geographic location of, and the number implication being that the fees may
substantiated complaints that involve of Convention adoption cases managed prove inadequate to support the
conduct that is in violation of Federal, by the agencies or persons subject to necessary investigation. The commenter
State, or local law. accreditation or approval by the suggests that the Department remove the
3. Comment: Two commenters object accrediting entity.’’ Therefore, the responsibility for investigating
to § 96.7(a)(8), on transfer of Convention Department does not have the discretion accredited agency and approved person
wrongdoing from accrediting entities any accrediting entity, including a commenter also requests clarification on
and retain that responsibility for itself. public entity that has authority under how accrediting entities will be given
Response: The IAA requires that State law to collect accrediting fees. notice of any complaints or concerns
accrediting entities investigate and that may arise so that they have an
review complaints against the agencies Section 96.9—Agreement Between the
opportunity to respond to the concerns
and persons that they accredit or Secretary and the Accrediting Entity
and to correct any deficiencies.
approve. Under section 204(b) of the 1. Comment: A commenter states that Response: The Department has added
IAA, the Department is only required to there must be a mechanism in the § 96.10(b), which requires the
take adverse action against an agency or regulations to ensure consistent Department to notify an accrediting
person if it finds that the accrediting interpretations of the Convention, the entity in writing of any deficiencies in
entity has failed or refused, after IAA, and the Department’s regulations the accrediting entity’s performance that
consultation with the Department, to by accrediting entities across geographic could lead to the cancellation or
take appropriate enforcement action. regions. The commenter requests that suspension of its designation as an
Accrediting entities are supposed to the Department outline uniform accrediting entity. The accrediting
incorporate anticipated costs, including standards in the regulations. entity will be given an opportunity to
the costs of complaint review and Response: These regulations do create demonstrate that suspension or
investigations and routine oversight and uniform accreditation standards and cancellation is unwarranted, in
enforcement, into their proposed fees. procedures for all accrediting entities. accordance with mutually agreed upon
When the Department approves fees, we The criteria to be used by all accrediting procedures for handling complaints
plan to ensure that the accrediting entity entities are listed in subpart F (and with against the accrediting entity
has budgeted for such expenses. In regard to temporarily accredited established in the agreement between
addition, § 96.8(b)(2) provides that agencies in subpart N). The procedures the Department and the accrediting
‘‘separate fees based on actual costs applicable to the accreditation process entity described in § 96.9. Section
incurred may be charged for the travel are provided in subparts D through N, 96.10(c) now lists the factors that the
and maintenance of evaluators.’’ If an excluding F. The Department, in its Department will consider to determine
accrediting entity finds that its actual oversight and monitoring role, will whether an accrediting entity is
expenses are far greater than it had ensure that all accrediting entities substantially in compliance with these
anticipated in creating its fee schedules, adhere to these uniform standards and regulations, the IAA, and the
and its fees are not sufficient to cover its procedures. Please also see the response Convention.
operating expenses, it may apply to the to comment 1 on § 96.66. 2. Comment: A commenter asks
Department to change its fee schedule. 2. Comment: A commenter states that whether accrediting entities will be able
5. Comment: A commenter the Department should submit all to appeal any adverse decision by the
recommends that the Department allow matters listed in § 96.9 to a notice and Department regarding cancellation or
accrediting entities to revise their fee comment period instead of setting them suspension without having to go to
schedules from time to time with the by agreement. The commenter states court.
approval of the Department. that these subjects are or may be crucial, Response: Under section 204(d) of the
Response: Pursuant to § 96.8(a), and require an opportunity for public IAA, an accrediting entity that is the
accrediting entities may propose comment. The commenter further subject of a final action of suspension or
changes to an approved fee schedule, believes that it is unlikely that the cancellation may petition the United
subject to approval by the Department. regulations will be upheld in court States District Court for the District of
Upon approval, the modified fee unless the Department submits these Columbia or the United States District
schedule will be made available to the matters to notice and comment. court in the judicial district in which
public. Response: Section 202(a) of the IAA the accrediting entity is located to set
6. Comment: A commenter thinks that requires the Department to enter into aside the action by the Department. The
the Complaint Registry should be agreements with one or more qualified IAA does not provide for administrative
funded through a portion of accrediting accrediting entities under which such review of cancellation or suspension of
fees or by the Department. The entities will perform certain duties in an accrediting entity by the Department.
commenter also believes that applicants accordance with the Convention, the Section 96.10(b) of the rule now
for accreditation should pay a single, IAA, and these regulations. While the provides, however, that prior to the
non-refundable fee for pre- and post- IAA requires that the standards to be action being taken, an accrediting entity
accreditation/approval work. The used by the accrediting entities to will be given an opportunity to
commenter requests, however, that the accredit or approve agencies or persons demonstrate to the Department that
Department clarify that public bodies, to provide adoption services in suspension or cancellation would be
such as State licensing authorities, are Convention cases be set by regulation, it unwarranted.
permitted to charge similar accrediting does not require that the Department’s
fees. Subpart C—Accreditation and
agreements designating accrediting
Response: Under this final rule, the Approval Requirements for the
entities be subject to public comment—
Department retains the discretion to Provision of Adoption Services
such a requirement would be
determine how to fund the Complaint unworkable. Nonetheless, the Subpart C is organized the same way
Registry, including through fees Department will publish the final as in the proposed rule, except that the
collected by the accrediting entities agreements in the Federal Register. Department has added a new § 96.15
and/or by the Department. Section 96.8 (Examples) and consequently
explains the costs which may be Section 96.10—Suspension or renumbered § 96.15 (Public domestic
included in any fee for accreditation Cancellation of the Designation of an authorities) and § 96.16 (Effective date
and approval, including costs for Accrediting Entity by the Secretary of accreditation and approval
complaint review and investigation and 1. Comment: A commenter asks how requirements) as §§ 96.16 and 96.17
routine oversight and enforcement, and the Department will determine whether respectively. Subpart C also contains
requires any such fee to be non- accrediting entities are in substantial § 96.12 (Authorized adoption service
refundable. The fee provisions apply to compliance with the regulations. The providers); § 96.13 (Circumstances in
which accreditation, approval, or Section 96.12—Authorized Adoption implementing proclamation. We note,

supervision is not required); and § 96.14 Service Providers however, that under Articles 14 and 41
(Providing adoption services using other 1. Comment: A commenter asks what of the Convention, we would expect the
providers). will happen to intercountry adoption Convention to apply only to cases that
cases already in progress once the arise after the Convention enters into
The Department made a number of
Convention enters into force. force between the United States and the
changes to this subpart in response to
Response: We have modified new Convention country, not to cases
public comments, including changes to
§ 96.12(a) to make explicit reference to already in progress.
§§ 96.12, 96.13, 96.14 and 96.15. As For a full list of countries that have
discussed above in addressing § 96.4 section 505(b) of the IAA and to clarify
already ratified or acceded to the
comment 7, the Department has added that cases in progress are not within the
Convention, please refer to the Web site
a new § 96.12(c) to underscore that scope of this rule. Section 505 of the
of the Hague Conference on Private
conferral and maintenance of IAA establishes how entry into force of
International Law at http://
accreditation, temporary accreditation, the Convention for the United States
www.hcch.net. From the home page,
or approval is not tantamount to a will affect cases in progress (so-called
click ‘‘Welcome,’’ click ‘‘Conventions’’
guarantee that adoption services in ‘‘pipeline cases’’). In general, adoption
from the left hand menu, click
specific cases are performed cases that are initiated, either in the Convention No. 33 in the list provided,
United States or in a Convention and then click ‘‘Status table’’ from the
consistently with the Convention, the
country, before the entry into force of right hand menu. (The direct Web
IAA, the regulations implementing the
the Convention for the United States address is http://hcch.e-vision.nl/index_
IAA, or any other applicable laws, but
will not be treated as Convention cases en.php?act=conventions.status&cid=69)
rather establishes only that the
subject to the IAA. If any further If an entry into force or ‘‘EIF’’ date
accrediting entity has concluded that transition rules prove to be necessary,
the agency or person conducts adoption appears in connection with a country,
the Department will consider and the United States has not objected
services in substantial compliance with undertaking an additional rulemaking
the applicable standards set forth in this to the accession (which would be shown
procedure. by clicking on ‘‘A**’’ in the Type
part. Section 96.13 has also been revised 2. Comment: Commenters ask if an
to clarify that, like § 96.12, it addresses column), then it is a Convention
agency or person will need to be country. The Web site also lists the
services being provided in the United accredited/approved if they handle countries, like the United States, that
States in connection with a Convention adoptions from a country whose have signed the treaty but for whom the
adoption. ratification or accession to the treaty has not yet entered into force.
As discussed in section III, subsection Convention has not been recognized by 3. Comment: A commenter is
A of the preamble, above, § 96.14 of the the United States. A commenter concerned that mandatory accreditation
final rule differs from the proposed rule requests that the Department clarify will create a burden for agencies and
in its treatment of the responsibilities of when an agency or person will be persons. The commenter requests that
a primary provider with respect to its required to be accredited or approved if subpart C permit voluntary
use of other providers of adoption they are handling intercountry adoption accreditation. The commenter also
services in the United States and in cases involving a country that is in the recommends that the Department
Convention countries. The Department process of ratifying the Convention. encourage agencies working in non-
has revised § 96.14(b) and § 96.14(d) to Response: Once the Convention has Convention countries to seek
require that, except as otherwise entered into force for the United States, accreditation voluntarily.
provided, in providing adoption an agency or person operating in the Response: Consistent with the
United States needs to be accredited, Convention, section 201 of the IAA
services in the United States for a
temporarily accredited, approved, or creates a mandatory accreditation and
Convention case, a primary provider
supervised or exempted only if it is approval system for Convention
must treat other accredited agencies,
performing adoption services in a adoptions. On the other hand, the IAA
temporarily accredited agencies, and
Convention adoption. An adoption will does not give the Department authority
approved persons as supervised
not be considered a Convention to require accreditation or approval for
providers under its responsibility and adoption unless the Convention has
supervision. The response to comment 1 non-Convention cases. Thus no changes
entered into force between the United are warranted in light of these
on § 96.14, below, discusses similar States and the other country involved.
changes to § 96.14(c), the result of comments.
The Convention will not be in force
which is generally to require a primary between the United States and the other Section 96.13—Circumstances in Which
provider to treat all non-governmental country if the other country has not yet Accreditation, Approval, or Supervision
foreign providers as supervised ratified, approved, or acceded to the Is Not Required
providers, consistent with the standards Convention, or if the United States does 1. Comment: Several commenters
in §§ 96.46(a) and (b), regardless of not recognize another country’s believe that an exempted provider
whether accredited by a Convention accession to the Convention, as should be a social work professional or
country, with a limited exception. The permitted by Article 44 of the organization that is performing a home
exception is provided for in Convention in certain circumstances. study but is not currently providing any
§ 96.14(c)(3), which allows a primary With respect to the question of when other adoption service. They believe
provider to use any foreign provider in agencies and persons handling this would allow the exempt
a Convention country to obtain consents intercountry adoptions will need to be organization to become a supervised
or perform a child background study in accredited or approved to handle provider later, once a client selects a
an incoming case, or to perform a home adoptions from countries whose placing agency that will require post-
study in an outgoing case, so long as the subsequent ratification, approval, or placement services from the home study
primary provider verifies the provision accession the United States recognizes, provider.
of the service, in accordance with the we expect that this question will be Response: The Department has
standards set out in § 96.46(c). largely governed by the other country’s changed the definition of exempted
provider, as noted in the response to such as post-placement monitoring. studies in the United States from
comment 9 on § 96.2. The changes to the Thus a provider may offer any accreditation/approval requirements if
definition are meant to clarify that the combination of ‘‘exempt services’’ (child such providers are not providing any
event that triggers the accreditation/ background studies and home studies), other adoption service in the case.
approval requirement is the provision of child welfare services (such as post- There are other protections covering
an adoption service other than a home adoption services), and other non- the completion of home studies and
study or child background study. Until adoption services (such as legal child background studies by exempted
an agency or person begins to provide services) in a case without being providers. The preparer of the home
such a non-exempt adoption service in required to be accredited, temporarily study or child background study must
addition to a home study report (or accredited, approved, or supervised. comply with other applicable Federal
child background study), it is not This is further discussed in the response and State laws and regulations
required to be accredited or approved. to comment 6, below, explaining concerning the preparation of a home
(Note that the Department has modified changes to § 96.13(b) and (c). Please also study or child background study. As an
the language of § 96.13(a) to remove a see example 8 in § 96.15, regarding post- added measure of guidance and
repetitive restatement of the definition placement monitoring, for a concrete protection, the reports must be
of exempted provider found in § 96.2; illustration. approved by an accredited agency or
this modification does not change the 3. Comment: Several commenters temporarily accredited agency who,
fact that a home study preparer or child recommend that the home study or under § 96.47(c), must determine that
background study preparer who is not child background study prepared by an such laws have been complied with,
currently and has not previously exempted provider be submitted to an and that all information required by
provided any other adoption service in accredited agency or temporarily these regulations has been included.
the case is exempt from accreditation/ accredited agency for review and re- These protections will help to ensure
approval.) If the exempted adoption approval. The commenters assert that that the home studies and child
service provider is simultaneously or clarifying that the report will be re- background studies prepared by
subsequently asked to perform an approved instead of approved denotes exempted providers comply with
additional adoption service in the case, that the study was approved first by the Convention requirements, the IAA, and
however, the adoption service provider home study agency as required by State these regulations.
at that time would be required to and Federal regulations, and then was 5. Comment: A commenter asks
become accredited, approved, or submitted to the accredited or whether U.S. social workers licensed in
supervised before providing the temporarily accredited agency for re- the United States who live abroad and
additional adoption service in the approval. perform home studies and post-
United States. The examples numbered Response: The Department is not adoption services for Americans
3, 5, and 6 in § 96.15 illustrate the making this change because we believe overseas need to be accredited or
circumstances in which a home study the rule, as written, addresses the approved. If we understand the
provider is exempt and circumstances commenter’s concern. The requirement comment correctly, such U.S. social
in which the provider would need to in § 96.13(a) of these regulations that a workers often assist individual U.S.
become accredited or approved or study prepared by an exempted clients and U.S. child-placing agencies,
supervised. Example 4 in § 96.15 provider must be ‘‘approved’’ refers to but the laws of the country in which
illustrates circumstances in which a the new approval requirement they are living may preclude their
child background study provider would mandated by section 201(b)(1) of the working as an employee of a U.S.
be exempt. IAA. In order to get this section agency. Thus, such a social worker
2. Comment: One commenter suggests 201(b)(1) approval by an accredited cannot be an employee of an accredited
that exempted providers should be agency or temporarily accredited agency or approved person under these
allowed to provide both home study agency, § 96.47(c) requires a regulations.
services and post-placement services, determination that the home study was Response: A U.S. licensed social
because no agency can easily survive performed in accordance with 8 CFR worker living abroad and providing
performing only home studies. Another 204.3(e) and applicable State law. post-adoption services and home
commenter believes it is impractical to Therefore, under these regulations, studies will have to comply with the
exempt only home study services and home studies must comply with any laws of the country of residence, which
not post-placement services. applicable State approval requirements, may preclude the social worker from
Response: The IAA specifically 8 CFR 204.3(e), and the IAA being employed directly by an agency or
includes post-placement monitoring as requirement that the home study be person accredited or approved under
an adoption service that requires an approved by an accredited or these regulations. Such a social worker
agency or person to be accredited, temporarily accredited agency. will not have to be independently
temporarily accredited, approved, or 4. Comment: Several commenters accredited or approved under these
supervised. believe that the regulations should not regulations. In some circumstances,
Like post-adoption services and child exempt home study or child background however, an accredited agency or
welfare services, post-placement study providers from the accreditation/ approved person in the United States
services other than post-placement approval process. One commenter will be held responsible under these
monitoring are not adoption services, as requests that, at a minimum, home regulations for treating an independent
discussed in the response to comment 4 study and child background study overseas U.S. licensed social worker as
on § 96.2. The change to the definition providers be supervised providers. a supervised provider, for example, if
of exempted provider should clarify that Some commenters support the the social worker is asked to assist an
providers of home studies and/or child exemption of home study and child accredited agency or approved person
background studies in the United States background study providers from by performing home studies in cases
who have not performed any other accreditation/approval. involving immigration to the United
adoption service in connection with a Response: Section 201(b)(1) of the States or by performing post-placement
case are exempted providers until they IAA clearly exempts the providers of monitoring. If the independent overseas
provide a subsequent adoption service, home studies and child background social worker is providing a home study
in an outgoing case, an accredited must be accredited, temporarily under the IAA. The preparation of post-
agency or approved person would also accredited, approved or supervised adoption reports and efforts to
be able to use a home study prepared by unless the only adoption service encourage parents to file these reports
the social worker if it verified the study provided is preparation of a home study are post-adoption services. Agencies or
pursuant to § 96.46(c). and/or a child background study. persons that solely perform such types
6. Comment: A commenter 7. Comment: A commenter is of post-adoption services do not need to
recommends requiring that agencies or concerned that facilitators, permitted to be accredited, temporarily accredited,
persons be accredited or approved if operate under some States’ laws and not approved, or supervised. The
performing a home study/child others, will be exempt from becoming Department does not consider any
background study and providing a child accredited or approved. The commenter change to the regulation to be necessary
welfare service. believes that this will provide in response to this comment.
Response: The proposed rule caused unlicensed facilitators an unfair 10. Comment: One commenter notes
some confusion as to the circumstances advantage by permitting them to that several foreign governments require
in which accreditation, temporary provide services without adhering to adoptive parent(s) to use an agency or
accreditation, supervision, or approval State or Federal licensing laws. person for post-adoption reporting. The
will be required. Confusion is difficult Response: Any agency or person that commenter states that many agencies
to avoid, in part, because section 201 of provides one of the adoption services and persons currently take advantage of
the IAA both includes home studies and defined in § 96.2 in the United States this requirement by overcharging
child background studies in the must be accredited, temporarily adoptive parent(s) for these services.
definition of adoption services covered accredited, approved, supervised, or an The commenter requests that the
by the accreditation/approval/ exempted provider under these Department attempt to regulate this
supervision requirement and provides regulations, regardless of whether or not behavior.
that preparing these studies is a service the agency or person must be licensed Response: The preparation and filing
exempt from accreditation/approval/ or otherwise authorized in the State in of post-adoption reports are post-
supervision in certain circumstances. which they operate. Furthermore, adoption services. The IAA does not
The Department is changing § 96.13(b) providers must still comply with any cover such services, or provide a basis
to state the rule more clearly. As other applicable State and Federal laws. to regulate the fees charged for them.
modified, § 96.13(b) states that, if an 8. Comment: A commenter is Nevertheless, § 96.40(b)(7) requires an
agency or person provides both a child concerned that the regulations do not accredited agency, temporarily
welfare service and any of the adoption protect parents who try to adopt accredited agency, or approved person
services listed in § 96.2 in the United independently, without the aid of an to disclose in writing its expected fees
States in a Convention case, it must be agency or person. The commenter and estimated expenses for any post-
accredited, temporarily accredited, believes that such parents may be placement or post-adoption reports that
approved or supervised unless the only particularly susceptible to questionable the agency or person or parent(s) must
adoption service provided is adoption practices. Also, one prepare in light of any requirements of
preparation of a home study and/or a commenter thinks that parents adopting a child’s expected country of origin. The
child background study. Thus, if the independently should not be exempt Department believes that this
agency or person is an exempted from the regulations. Other commenters requirement will help prospective
provider and provides a child welfare suggest that adoptive parents should not adoptive parent(s) to make informed
service, the agency or person is still an have to comply with the Convention, choices when choosing an agency or
exempted provider. It will remain the IAA or other applicable laws when person and will promote fair and ethical
exempted from accreditation/approval acting on their own behalf. fee arrangements.
even if, in addition to providing child Response: Because section 201(b)(4) 11. Comment: One commenter
welfare services it also provides a home of the IAA explicitly exempts requests that the Department draft a
study, child background study, or both. prospective adoptive parent(s) who are ‘‘non-interference’’ regulation that
Otherwise the home study and child acting on their own behalf from any prohibits agencies and persons from
welfare services exemptions, explicitly accreditation/approval requirements, interfering in an adoption when
required by the IAA, would have little § 96.13(d) is retained in the final rule. prospective adoptive parent(s) act on
force. On the other hand, if an agency Notwithstanding this exemption, their own behalf.
or person provides an adoption service prospective adoptive parent(s) acting Response: The Department does not
in the United States in addition to the independently must comply with the believe that it is necessary at this time
child background study or home study, Convention, other applicable provisions to include a non-interference provision,
then that agency or person must be of the IAA, and other applicable laws. assuming that one germane to
accredited, temporarily accredited, Moreover, as provided in § 96.13(d), accreditation/approval could be crafted.
approved or supervised. For further parent(s) may act on their own behalf If a prospective adoptive parent believes
clarification, the Department has added only if such action is allowed under that an accredited agency or approved
at § 96.15 examples illustrating applicable State law and the law of the person is acting incompatibly with the
circumstances when providers must be concerned Convention country. IAA’s exemption of prospective
accredited, temporarily accredited, 9. Comment: A commenter requests adoptive parent(s) acting on their own
approved, or supervised, and examples that the regulations emphasize that behalf from the accreditation/approval
of when they are exempt. Examples 2 ‘‘post-adoption services,’’ including requirements, the complaint procedures
and 5 of § 96.15 specifically address the reminding the prospective adoptive of this rule will apply.
child welfare services exemption. parent(s) of their need to file post-
To be consistent with § 96.13(b), the adoption reports with the country of Section 96.14—Providing Adoption
Department has also modified § 96.13(c) origin, are not ‘‘adoption services.’’ Services Using Other Providers
so that, if an agency or person provides Response: The commenter is correct 1. Comment: Several commenters are
both legal services and any adoption that post-adoption services—those concerned about the relationship
service defined in § 96.2 in the United services provided after a child’s between a primary provider and entities
States in a Convention adoption case, it adoption—are not adoption services accredited by Convention countries
(foreign accredited providers). Many supervise an ‘‘agent’’ or other individual may need the flexibility to accept home
want the regulations to reach as many in a Convention country does not turn studies prepared by exempted providers
types of providers who operate overseas on what the provider is called. Section that have been approved by other
as possible, while others stress that U.S. 96.14 requires that a primary provider accredited or temporarily accredited
agencies and persons are not able to adhere to the standards of § 96.46 when agencies (for example those located in
control or oversee the conduct of foreign using any foreign non-governmental other States) to complete Convention
providers. Some commenters want provider, and § 96.2 now makes clear adoptions. Otherwise, primary
primary providers to be responsible for that ‘‘agents’’ and other foreign entities providers could find it difficult to work
supervising the actions of every agency are included in the definition of with out-of-State prospective adoptive
or person they use overseas, but others supervised provider. These parent(s).
support the proposed rule, under which modifications to the regulations are 5. Comment: A commenter is
primary providers were not responsible sufficient to address this comment. concerned that small agencies will have
for supervising foreign accredited 3. Comment: One commenter notes a trouble finding work as supervised
providers. Connecticut case in which the court providers because large accredited
Response: The issue of who a primary refused to award a State subsidy to an agencies will attempt to curb
provider must treat as under its adoptive parent—presumably located in competition by performing all services
supervision and responsibility is clearly Connecticut—because the entity that in a case on their own, and recommends
one on which reasonable people differ. ‘‘placed’’ the child was not licensed in that, in lieu of having primary providers
As explained at section III, subsection Connecticut, and suggests that the supervise other agencies, the
A of the preamble, above, the Department address the interpretation of Department step into the role of
Department has modified §§ 96.14(c) State statutes regarding the award of supervisor of the provision of adoption
and (d) to require that providers post-adoption subsidies through these services by smaller agencies.
accredited by the Convention country, regulations. Response: It would be incompatible
in addition to providers that are Response: The Department infers that with the IAA’s scheme for Convention
unregulated by the Convention country, the commenter believes that the implementation for the Department to
be treated as foreign supervised Department could affect when State take on a direct role in supervising the
providers, unless they are performing a subsidies are available by including in provision of adoption services, and we
service qualifying for verification under the regulation a provision regarding, for therefore decline to make any change in
§ 96.46(c). A primary provider will example, whether a primary provider or response to this comment. As well, we
therefore need to exercise care in a supervised provider will be note that temporary accreditation, under
selecting foreign supervised providers, considered to have ‘‘placed’’ a child for section 203(c) of the IAA, is meant to
and will need to oversee their work; it adoption, or where an adoption service address this commenter’s concerns, by
may lose its status as an accredited provider will be deemed to be located, providing a mechanism to allow small
agency or approved person if it fails to if multiple providers are involved in a agencies to continue to operate
ensure that its use of foreign supervised Convention adoption. The Department independently of larger agencies, while
providers meets the relevant standards does not agree that this issue can or giving the small agencies a longer
in § 96.46. should be addressed in these period of time to gather the information
This change in the regulations is regulations. and resources necessary to achieve full
consistent with the Department’s view— 4. Comment: A commenter requests accreditation. Moreover, while we
made express in new § 96.12(c)—that that the Department change § 96.14(b)(2) cannot fully predict at this time the
accreditation is not a guarantee of good because, as written, it appears that home public demand for provision of
behavior. It also underscores the studies performed by an exempted adoption services in Convention cases,
importance of U.S. agencies or persons provider must be approved by any we believe that it is unlikely that
working with ethical providers in other accredited agency, but not specifically accredited agencies or approved persons
countries in order to ensure that all by the primary provider. Other will have the resources to take over
Convention adoptions comply with commenters suggest primary providers providing all of the adoption services
Convention standards. The final rule could be reluctant to accept home that are currently handled by small
means that primary providers cannot studies from exempted providers that agencies or persons. Also, when
ignore questionable practices simply they themselves did not approve. working with out-of-state clients,
because they are committed by a foreign Response: The Department is not accredited agencies and approved
provider that has been accredited. While making the change suggested because persons will likely need supervised
the exception for services qualifying for the Department believes that the providers to provide adoption services
verification acknowledges that U.S. regulation, as written, is consistent with in States where they are not licensed.
agencies and persons may not be well the IAA, section 201(b)(1), which Thus, the Department anticipates that
positioned to supervise the providers of requires only that a home study small agencies and persons will
such services, the after-the-fact prepared by an exempted provider be continue to be able to provide services
verification requirement will require the reviewed and approved by an accredited in Convention adoptions.
U.S. agency or person acting as the agency. We do not believe it is 6. Comment: One commenter requests
primary provider to take appropriate necessary to require further that the that the Department specifically outline
steps to ensure that the requirements of accredited or temporarily accredited what services require an agency or
the Convention and local law have been agency approving the home study be the person to be accredited or approved.
met. primary provider in the Convention Response: Only an agency or person
2. Comment: Some commenters state case, and do not believe that this providing adoption services, as defined
that primary providers should be fully provision will deter primary providers in the IAA and in § 96.2, in a
responsible for all ‘‘agents’’ and from accepting home studies from Convention adoption in the United
individuals that assist them in the exempted providers. While the primary States is required to be accredited or
country of origin. provider must supervise and be approved. An agency or person may
Response: Under the IAA and this responsible for the supervised providers avoid accreditation or approval if it
rule, whether a primary provider must with which it works, primary providers provides Convention adoption services
solely as a supervised provider or Subpart D—Application Procedures for set after the Department and the
exempted provider. Section 96.15 Accreditation and Approval accrediting entities have a better idea of
provides examples of circumstances in Subpart D is organized in the same how long it will take the accrediting
which an adoption service provider will way as in the proposed rule, and entities to do their job, all agencies and
be required to be accredited, includes § 96.18 (Scope); § 96.19 persons who applied by the TAD should
temporarily accredited, or approved or (Special provision for agencies and have a reasonable opportunity to have
to operate as a supervised provider or persons seeking to be accredited or their applications for accreditation or
exempted provider. approved as of the time the Convention approval reviewed by the DIAA. The
process for applying for accreditation/
enters into force for the United States);
Section 96.16—Public Domestic approval after the Convention has
§ 96.20 (First-time application
Authorities entered into force is already described
procedures for accreditation and
in § 96.20.
Comment: The Department received a approval); § 96.21 (Choosing an
comment stating that it should require accrediting entity); and § 96.22 Section 96.20—First-Time Application
public domestic authorities providing (Reserved). Procedures for Accreditation and
adoption services to become accredited As discussed below, the Department Approval
just like private entities, because it is has made no changes to this subpart in Comment: A commenter believes that
response to public comment. It has the regulations should specify the
‘‘hypocritical’’ for the U.S. Government
made minor technical and conforming length of time an accrediting entity has
to have one set of rules for private
changes, however. to evaluate an applicant for
agencies and a different set for public
domestic authorities. Section 96.19—Special Provision for accreditation or approval, and suggests
Agencies and Persons Seeking To Be 90 days.
Response: While initial draft versions Response: While the Department
Accredited or Approved at the Time the
of the IAA did not exclude government wants to ensure that applications for
Convention Enters Into Force for the
agencies from the category of persons to accreditation and approval are reviewed
United States
be accredited or approved, (S. 682, as quickly as possible, it is not
106th Cong. 1st Sess. (1999) and H.R. Comment: Commenters support the establishing a deadline by which
2342, 106th Cong. 1st Sess. (1999)), transitional application deadline (TAD) accrediting entities will have to
sections 3(14) and 201(a) of the IAA as and deadline for initial accreditation or complete their work. Variables like the
enacted, taken together, provide that approval (DIAA) process. Some request number of agencies and persons that
persons to be accredited/approved shall that the regulations more clearly outline will apply, and the number and capacity
not include an agency of government or the process for those who obtain of the accrediting entities, require that
tribal government entity, thereby accreditation after the Convention has the time frame remain flexible. In
entered into force. Another commenter addition, § 96.24(d) authorizes
excluding public domestic authorities
suggests that any agency or person that accrediting entities to give agencies and
from the accreditation and approval
has applied for full accreditation during persons an opportunity to cure
requirement. The Department the initial accreditation/approval
understands this to exclude all State, deficiencies before denying an
timeframe, but that has not been application for accreditation or
local and tribal government entities—an processed by an accrediting entity
approach that is consistent with the approval. If the Department imposed a
through no fault of its own, should be 90-day limit on completion of
concerns of the Convention’s drafters granted temporary accreditation.
about abuses by private entities and that accreditation and approval decisions,
Response: We are not modifying the accrediting entities could be forced to
avoids placing the Federal government rule to allow temporary accreditation to deny applications in circumstances
in the role of regulating State and local be granted to an applicant for full where an agency or person had not yet
governments unnecessarily. (See the accreditation that has not been cured any identified deficiencies within
Notice of Proposed Rulemaking at 68 FR accredited by the DIAA. The IAA 90 days. We believe agencies and
54079 for further discussion of this specifically limits temporary persons will benefit from an
issue.) accreditation to small agencies, as accreditation and approval process that
defined in section 203(c) of the IAA. retains some flexibility.
Section 96.17—Effective Date of
The Department recognizes, however,
Accreditation and Approval Section 96.21—Choosing an Accrediting
that a large volume of applications may
Requirements Entity
make it difficult for accrediting entities
Comment: A commenter asks what to complete accreditations and Comment: Some commenters
will happen to an agency that has not approvals in an expedited fashion. For recommend that applicants for
completed the accreditation process this reason, § 96.19 establishes that a accreditation and approval be allowed
when the Convention enters into force. TAD will be published before the final to apply to any designated accrediting
DIAA. After the Department learns the entity, regardless of geographical
Response: Once the Convention enters number of agencies and persons that location. Other commenters ask that the
into force for the United States, any applied by the TAD, and has an estimate regulations clarify the accrediting entity
agency or person providing adoption of how long it will take the accrediting to which an agency or person that is
services in connection with a entities to evaluate each applicant licensed in more than one State should
Convention adoption in the United (including conducting necessary site apply for accreditation or approval.
States will need to be accredited, visits), it will announce the DIAA. The Response: Section 96.21(a) states that
temporarily accredited, approved, DIAA will be the date by which an an agency or person applying for
supervised, or be an exempted provider. agency or person must complete the accreditation or approval may apply to
The rule has a special timetable for the accreditation or approval process so as any accrediting entity with jurisdiction
initial round of accreditation/approvals, to be accredited or approved when the over its application. The criteria to
which is discussed in the section-by- Convention enters into force for the determine the accrediting entities’
section responses for subpart D. United States. Since the DIAA will be jurisdiction will be set out in the
agreements between the Department and standards on intercountry adoption to consider in determining whether it
each accrediting entity. These practices that are derived from the can be accredited or approved.
agreements will be published in the Convention and the IAA and set forth in 3. Comment: A commenter notes that
Federal Register. The agreements subpart F. For example, § 96.33(b) the nonprofit charitable organization
between the Department and any requires an agency’s or person’s she works with cannot place children
accrediting entity that is a State finances to be subject to independent with adoptive parents because it has just
licensing authority will have audits every four years. COA standard received State licensure as a child-
geographical limitations on its G6.5.02 does not require any audit of an placing agency, and the authorities in
jurisdiction that are consistent with organization that annually reports the foreign country in which it works
section 202(a)(2)(B)(ii) of the IAA, revenues less than $500,000. Similarly, require a child-placing agency to have
which states that public entities § 96.34(a) prohibits an agency or person been licensed at least four years before
designated as accrediting entities will be from compensating any individual it is allowed to place children. The
permitted to accredit ‘‘only agencies providing intercountry adoption commenter expresses hope that the
located in the State in which the public services on a contingent fee basis, and Department will be able to resolve the
entity is located.’’ § 96.34(b) prohibits an agency or person issue of differing standards in different
from compensating its directors, countries in this rule, and welcome new
Subpart E—Evaluation of Applicants agencies into the Convention system.
for Accreditation and Approval officers, employees or supervised
providers on a contingent fee basis. Response: The Department welcomes
Subpart E is organized in the same COA standards have no explicit all agencies and persons, both new and
way as in the proposed rule, and prohibition against contingent fees. The old, to apply for accreditation or
includes § 96.23 (Scope); § 96.24 regulation in § 96.35(b) also contains approval. The Department hopes that
(Procedures for evaluating applicants for requirements that are not in COA birth parents and prospective adoptive
accreditation or approval); § 96.25 standards. The COA standards are parent(s) will be able to select a
(Access to information and documents focused on overall organizational provider from a broad and
requested by the accrediting entity); integrity and ensuring best child welfare geographically diverse pool of
§ 96.26 (Protection of information and practices. The Department’s standards accredited agencies and approved
documents by the accrediting agency); are instead focused on implementing persons to help them with Convention
§ 96.27 (Substantive criteria for specific provisions of the IAA and adoptions. Article 12 of the Convention,
evaluating applicants for accreditation ensuring that agencies and persons can however, states that an agency that is
or approval), and § 96.28 (Reserved). perform Convention tasks. Finally, accredited in one Convention country
The Department has made a number may provide services in another
considerations of equity and timeliness
of changes in response to public Convention country only if it has been
counsel against allowing a COA
comments, including to § 96.24, § 96.25, authorized to do so by the authorities of
voluntary accreditation to substitute, in
§ 96.26, and § 96.27, which are both countries. Thus, the United States
whole or in part, for accreditation under
discussed below. cannot, in this rule, ensure that U.S.
these regulations—equity vis-á-vis
accredited agencies and approved
Section 96.24—Procedures for agencies and persons who have not
persons will be entitled to work in all
Evaluating Applicants for Accreditation participated in COA’s voluntary
Convention countries. The Department
or Approval program and timeliness to the extent
expects, however, that because the
1. Comment: Several commenters that accreditation under these
standards for U.S. accreditation and
request that the Department address regulations will be based on information
approval will be stringent and
whether agencies that have undergone to be collected in the future and closer comprehensive, Convention countries
voluntary accreditation, as offered by to time to entry into force. may be willing to accept U.S.
the Council on Accreditation (COA), 2. Comment: Several commenters ask accreditation or approval, without
will have any ‘‘deemed status.’’ that agencies and persons that have a requiring further accreditation or
Similarly, several commenters request State license become automatically approval.
that, if an agency or person is already accredited. Other commenters seek 4. Comment: One commenter notes
voluntarily accredited, then the deeming of State licensing authorities’ that the proposed regulation would
accrediting entity recognize standards. require evaluators to have experience in
automatically compliance with certain Response: The IAA does not authorize intercountry adoption or the evaluation
subpart F standards that they believe are the Department to substitute licensure of compliance with standards. While the
duplicative of the standards under by a State for accreditation/approval commenter believes it would be
which they were voluntarily accredited. under the Federal scheme created by the preferable to require experience with
Some voluntarily accredited small IAA. The Convention and the IAA both, because it expects that any entity
agencies contend that they cannot afford mandate many specific duties for designated as an accrediting entity
a second accreditation. agencies and persons, including would receive an initial flood of
Response: The Department will not reporting duties, which are not part of accreditation/approval applications, it
allow agencies or persons that have current State licensing. In addition, requests that § 96.24(a) be revised to
undergone a voluntary accreditation because licensing requirements vary allow the use of a wider pool of
process to have ‘‘deemed’’ Convention between States, allowing ‘‘deeming’’ evaluators who do not have intercountry
accreditation or approval status. The would be at odds with the IAA’s goal of adoption experience in order to
Department acknowledges that some uniform interpretation and complete accreditation/approval on a
standards of subpart F overlap with the implementation of the Convention, IAA timely basis. Another commenter would
COA voluntary accreditation standards, section 2(a)(2), and might lead to like the regulation to specify that at least
however, there are many standards in disparities between agencies and one evaluator participating in site visits
subpart F that do not overlap. We do not persons, depending on their location. must have experience with intercountry
believe that COA voluntary Thus, the fact that an agency or person adoption.
accreditation is a substitute for ensuring is licensed or authorized by State Response: The Department has
that all agencies meet the specific licensing authorities is only one factor expanded the qualifications for
evaluators in § 96.24(a). Those costs of a site visit, including any costs Section 96.25—Access to Information
qualifications now include: (1) Expertise for off-site interviews. and Documents Requested by the
in intercountry adoption; (2) expertise 7. Comment: A commenter requests Accrediting Entity
in standards evaluation; or (3) the following revision to § 96.24(d) to 1. Comment: Several commenters ask
experience with the management or make notice of deficiencies to a the Department to clarify whether
oversight of a child welfare candidate for accreditation or approval accrediting entities are allowed access
organization. The Department believes mandatory: ‘‘Before deciding whether to
to information and documents
that permitting evaluators to meet any of accredit an agency or approve a person,
belonging to an agency or person
these three qualifications will ensure the accrediting entity shall advise the
regarding non-Convention cases. These
that accrediting entities perform high- agency or person of any deficiencies
commenters request that the Department
quality evaluations of agencies and that may hinder or prevent its
specifically limit the accrediting entity’s
persons, while leaving them flexibility accreditation or approval and defer a
access to information and documents to
to find enough qualified site evaluators. decision to allow the agency or person
Convention adoption cases only.
To preserve flexibility, we are not to correct the deficiencies.’’
Response: The Department has
mandating that the visiting site Response: The Department has not
modified this section to clarify that,
evaluator be the one with the changed the language of the proposed
rule. Section 96.24(d) already permits with the exception of first-time
intercountry adoption experience. applicants for accreditation or approval,
5. Comment: Some commenters are an accrediting entity discretion to give
an agency or person advance notice of agencies and persons are only required
concerned that the accrediting entities to give accrediting entities access to
will not consider complaints when and an opportunity to cure any
deficiencies that may hinder or prevent adoption case files related to
evaluating agencies and persons. Convention adoptions. Thus, if an
Response: We have added a provision its accreditation or approval. The
accrediting entities are being chosen agency seeking renewal of accreditation
to § 96.24(b) to require that accrediting provides adoption services relating to
based on their expertise and experience
entities consider complaints referred to both children from a Convention
with accreditation and/or licensing of
them under subpart J of this rule when country and children from a non-
adoption service providers, and the rule
reviewing an agency’s or person’s Convention country, the agency or
defers to that expertise by giving them
accreditation or approval status. person would have to give the
discretion to judge whether it would be
6. Comment: A commenter asks accrediting entity access to any
constructive to give notice and an
whether an agency seeking accreditation opportunity to cure deficiencies before adoption case files relating to
must cover the cost of any off-site any specific denial. intercountry adoptions with the
interviews with individuals (e.g., clients 8. Comment: One commenter notes Convention country, but not to the files
who have moved to a different city from that § 96.24(c) provides for persons with relating solely to its intercountry
the agency). knowledge of an agency’s or person’s adoptions from the non-Convention
Response: Pursuant to § 96.8(b)(2), work to comment on an application for country. The exception to this rule,
agencies and persons will pay a accreditation or approval, but that the which now appears at § 96.25(b), is that
nonrefundable fee for full accreditation Department has not provided a the accrediting entity may review case
or approval that is set to include ‘‘the mechanism for making such comments. files of non-Convention adoption cases
costs of all activities associated with the The commenter states that for the purpose of assessing a first-time
accreditation or approval cycle, knowledgeable individuals have no way applicant’s capacity to comply with the
including but not limited to, costs for of knowing whether an agency or person record-keeping and data-management
completing the accreditation or has filed for accreditation or approval. standards in subpart F. We make this
approval process * * * except that Response: This issue is not addressed exception so that accrediting entities
separate fees based on actual costs fully in the regulation, but will be have the option of reviewing adoption
incurred may be charged for the travel further addressed in the agreements case files of a first-time applicant if they
and maintenance of evaluators.’’ Thus, with the accrediting entities. Pursuant are concerned about the applicant’s
an agency or person can be expected to to § 96.91(b)(1), once the Convention record-keeping capabilities, since the
cover the cost of doing any off-site has entered into force, individuals who applicant will not have any Convention
interviews, whether the cost is wish to comment on an agency’s or case files to be reviewed. Section
incorporated fully into the accreditation person’s application for accreditation or 96.25(b) makes it clear that, if such
or approval fee or recovered in part approval may ask an accrediting entity review is requested by an accrediting
through fees for travel costs incurred by to confirm whether that agency or entity, the agency or person may
evaluators to do off-site interviews. person has a pending application for withhold names and other information
The fee arrangement is different for accreditation or approval. The that identifies birth parent(s),
those agencies seeking temporary Department intends, in its agreements prospective adoptive parent(s), and
accreditation, but the net result is the with the accrediting entities, to require adoptee(s) from such non-Convention
same with respect to off-site interviews. that the accrediting entities also make adoption case files to protect the privacy
The accrediting entity will charge a non- available to the public information of those individuals.
refundable fee for temporary related to agencies and persons that The general rule prohibiting review of
accreditation that will not include the apply to be accredited or approved by non-Convention adoption case files does
costs of site visits, whether on-or off- the date of entry into force. We also not apply with respect to documents
site, because a site visit is not intend to address in the agreements and information, such as policy
mandatory to receive temporary with the accrediting entities the guidelines, that relate to both
accreditation. If the accrediting entity mechanism by which the public can Convention and non-Convention
decides a site visit is necessary to communicate to the accrediting entity adoptions. The accrediting entity must
determine whether to approve an comments on initial applications for be given access to such documents and
application for temporary accreditation, accreditation or approval. The information. For example, accrediting
the accrediting entity will assess agreements will be published in the entities will be allowed to look at
additional fees to the agency for the Federal Register. documents relating to an agency’s or
person’s finances and corporate Information Act (FOIA), 5 U.S.C. 552 persons against the need to protect the
governance, which relate to both and § 96.26, because it believes § 96.26 privacy of individual participants in the
Convention and non-Convention conflicts with the FOIA. adoption process. The Department
adoption activities. Response: We have made a few believes that this provision, now
2. Comment: A commenter suggests changes to § 96.26(a). Section 96.26(a) § 96.26(c), strikes the right balance
that the Department amend § 96.25(a) so continues to require accrediting entities between these competing interests by
that it reads: ‘‘The agency or person to protect from unauthorized use and giving accrediting entities the authority
must give the accrediting entity access disclosure all documents and to request information that identifies
to all information and documents * * * information the accrediting entity may birth parents, prospective adoptive
that it requests [instead of ‘‘requires’’] to collect while doing its job of evaluating parent(s), and adoptees if they have an
evaluate an agency or person,’’ in order an agency or person, such as self articulated need for that information,
to remove any argument that the studies, internal policies, corporate but not requiring the automatic
accrediting entity would be required to financial data, and background disclosure of all such information, and
justify why access to certain documents information on individual employees. thus it has made no changes in response
or information was necessary to the We are not deleting the basic rule of to this comment.
accreditation process. confidentiality, because we believe it is
Response: The Department has appropriate when agencies and persons Section 96.27—Substantive Criteria for
modified § 96.25(a) so that it states that are being asked to disclose internal Evaluating Applicants for Accreditation
an agency or person must give the business information. or Approval
accrediting entity access to information In order to clarify in what 1. Comment: Several commenters
and documents ‘‘that it requires or circumstances information may be suggest that using a point system for
requests’’ to evaluate an agency or disclosed, and to reinforce that the evaluating compliance with standards
person for accreditation or approval. confidentiality rule does not prohibit will be too subjective. Many also believe
This should make it clear (subject to the disclosures otherwise required under that a substantial compliance system is
general rule prohibiting review of non- State or Federal law, we have moved too vaguely defined in the regulations.
Convention adoption case files) both and revised language from § 96.26(a) to Some request that the regulations
that the agency or person must give the a new § 96.26(b). Section § 96.26(b) now specify how different standards will be
accrediting entity the information and contains the general prohibition on weighted. Other commenters commend
documents it needs, even if not disclosure of such documents and the Department for allowing accrediting
requested by the accrediting entity, and information to the public, and sets out entities to develop a substantial
that the agency or person must give the the circumstances in which it is compliance system and express support
accrediting entity what the accrediting appropriate to release information. In for the rule as written. Some
entity requests, without challenging particular, § 96.26(b)(2) now includes commenters request that the Department
whether the accrediting entity needs the new language making it clear that the submit any substantial compliance
information and documents. accrediting entity may not withhold procedures to notice and comment
information, including an agency’s or rulemaking. Other commenters
Section 96.26—Protection of
person’s internal documents, if recommend that any system prevent an
Information and Documents by the
otherwise required to release it under agency or person from achieving
Accrediting Entity
State or Federal law. We note that accreditation or approval if it does not
1. Comment: Several commenters § 96.26 of the final rule cannot conflict meet all minimum requirements in
request that all documents used by an with the FOIA or similar State laws section 203(b)(1)(A)–(F) of the IAA.
accrediting entity in the accreditation because the prohibitions against Response: The Department did not
process be made available to the public, disclosure in § 96.26(b)(2) do not apply think it was advisable to include a
subject only to existing Federal, State, if disclosure is otherwise required under methodology for measuring substantial
and local laws. They suggest that the Federal or State laws. Thus, if the FOIA compliance in the rule, and continues to
documents could help prospective or other information disclosure laws be of that view. The accrediting entities,
adoptive families choose which agency apply, accrediting entities must comply who will be using the methodology and
or person to use for adoption services. with those laws. who will have more experience than the
Commenters also request that an 2. Comment: A commenter requests Department in administering standards,
agency’s or person’s list of supervised that the Department delete the first should take the lead in preparing the
providers (particularly foreign sentence of § 96.26(b) (now § 96.26(c)), procedures for measuring substantial
supervised providers) be public which allows agencies and persons to compliance.
information. These commenters want provide documents in which We have, however, revised § 96.27(d)
§ 96.26(a), which sets limits on individually assigned codes have been to clarify that the Department will retain
disclosure of information procured by substituted for personal identifying oversight over the development and use
the accrediting entity, to be deleted. information, because it believes of substantial compliance procedures by
Other commenters recommend that the monitoring the actual practices of an the accrediting entity, ensuring that
Department maintain § 96.26(a) as it is agency or person requires a each accrediting entity only uses a
written. They believe that comprehensive list identifying all method approved by the Department,
confidentiality is essential to facilitating clients, including prospective adoptive and that each method is substantially
an open relationship between parent(s) and birth parent(s), and the same as all other approved methods.
accrediting entities and agencies and because it believes the provision is In accordance with the rule, once an
persons seeking accreditation/approval. unnecessary because the remainder of accrediting entity is selected, the entity
Some commenters think subpart M the provision already imposes a duty of must develop a method of evaluating
appropriately specifies the types of confidentiality on the accrediting entity. compliance. Each such method will
information that should be provided to Response: The Department has to include: an assigned value for each
the public. One State licensing authority balance the need of accrediting entities standard or element of a standard; a
requests that the Department elaborate to obtain information on the practices of method of rating compliance with each
on the interplay between the Freedom of accredited agencies and approved standard; and a method of evaluating an
agency’s or person’s overall compliance accreditation or approval. The this into account in § 96.27(b). The rule
with all of the applicable standards. The Department considers it essential to give also requires, however, in § 96.24(b) that
Department must then approve each sufficient discretion to accrediting accrediting entities conduct site visits
accrediting entity’s method for entities, which will be selected based on for each agency or person seeking
ascertaining substantial compliance, their expertise, to decide when accreditation or approval. As provided
ensuring that the value assigned to each noncompliance warrants adverse action, in § 96.24(c), these site visits may
standard reflects the Convention and the and which kind of adverse action to include ‘‘interviews with birth parents,
IAA and is consistent with the value take. adoptive parent(s), prospective adoptive
assigned to the standard by other The Department recognizes that parent(s), and adult adoptee(s) served by
accrediting entities. The weighting of adherence to certain individual the agency or person, and interviews
particular standards will be based on standards is critical to protecting with other individuals knowledgeable
the priorities set in the Convention and children and families and comporting about the agency’s or person’s provision
the IAA (including the core standards in with the requirements of the Convention of adoption services.’’ Thus, we do not
IAA section 203(b)(1)(A)–(F)). and the IAA. Therefore, as noted in the
agree that the evaluation process focuses
The Department does not agree that response to comment 1 for this section,
too much on document review.
substantial compliance procedures, the accrediting entity is required to
when developed, must or should be develop and use a method for measuring In addition, § 96.24(b) has been
subject to Administrative Procedure Act substantial compliance which includes revised to require consideration of
rulemaking procedures. The final rule, assigning values and weighting each complaints received under subpart J;
like the proposed rule, instead requires individual standard, or element of a § 96.27(b) requires that past
that accrediting entities advise standard, reflecting the relative performance generally be considered in
applicants of the value assigned to the importance of each standard to determining if an agency or person may
standards or elements of the standards compliance with the Convention and retain or renew its accreditation or
at the time they provide applicants with IAA. The accrediting entity may not use approval to complete Convention
the application materials. This notice standards other than those contained in adoptions; and other standards in
and the Department’s oversight of the this rule. subpart F, in particular § 96.35, require
development of the procedures for 3. Comment: Several commenters the disclosure to the accrediting entity
measuring substantial compliance will believe that the accreditation process of much of the information these
ensure that agencies and persons are described in § 96.27 focuses too heavily commenters wish to have the
informed about the procedures before on document review. They would like accrediting entity consider. Please see
seeking accreditation or approval, and the regulations to emphasize analysis of the discussion of comments on § 96.35’s
that the procedures reflect the objectives an agency’s or person’s past disclosure provisions, including
of the Convention and the IAA. performance, including successful disclosures related to lawsuits,
2. Comment: Several commenters do adoptions, disruptions and dissolutions, complaints, and disciplinary
not agree with the use of a substantial complaints, and pending or resolved proceedings for further explanation.
compliance system. They request that lawsuits, as the primary criteria for
the regulations require complete accreditation. Some commenters suggest 4. Comment: A State licensing
compliance with all the standards of that the primary basis of evaluation for authority commends the Department for
subpart F. Many other commenters accreditation should be interviews of explaining, in § 96.27(g), that the
express their support for a substantial clients chosen on a random basis, as accreditation standards under these
compliance model. Some are concerned well as interviews with former regulations do not eliminate the need
that the accrediting entities will require employees, agents, and consultants. One for an agency or person to comply fully
compliance with standards not commenter suggests that a provider with the laws of the State in which it
contained in subpart F. should be required to waive any operates. The commenter suggests two
Response: There has been confidentiality requirements contained modifications to enhance a close
considerable disagreement in the in settlements of lawsuits. Some working relationship between
adoption community about which of the commenters would like agencies to give accrediting entities and State licensing
standards in subpart F—if any—should accrediting entities a list of all their authorities that are not accrediting
be made absolute. The preamble to the clients and former clients to aid in the entities. First, it recommends that the
proposed rule discussed this issue evaluation. Department require the accrediting
extensively. (See 68 FR 54080). The IAA Response: We believe the overall entities to consult with State licensing
plainly contemplates a substantial process outlined in the rule for authorities to verify that applicants for
compliance standard, however, as evaluating agencies and persons and accreditation or renewal of accreditation
section 204(b)(1) of the IAA requires the determining substantial compliance is are in compliance with State licensing
Department to suspend or cancel the consistent with the IAA’s accreditation requirements. Secondly, it recommends
accreditation or approval of an agency model. It is worth noting that that the Department specifically allow
or person who is ‘‘substantially out of accrediting entities will not initially be accrediting entities and State licensing
compliance with applicable able to monitor actual performance of
authorities to share information with
requirements,’’ if the accrediting entity agencies in completing Convention
each other pursuant to the access to
has not taken appropriate enforcement adoptions because the Convention will
information provisions of § 96.26.
action. In addition, the standards in Part not enter into force for the United States
F address a wide range of ethical and until after some agencies and persons Response: The Department
social work and adoption issues and have been accredited and approved. encourages open communication
reflect practices that inherently are Therefore, during the initial between accrediting entities and State
evolving. One-time failures to comply accreditation process a certain amount licensing authorities and has revised the
with a particular standard, though of document review is necessary to language of § 96.26(b) to clarify that
unfortunate, should not necessarily lead measure an agency’s or person’s sharing information with an appropriate
to the imposition of severe types of capacity to meet the standards once the public domestic authority, such as a
adverse action such as cancellation of Convention is in force. The rule takes State licensing authority, is authorized.
Subpart F—Standards for Convention outgoing cases); § 96.55 (Performance of otherwise authorized in each State in
Accreditation and Approval Hague Convention communication and which it is providing adoption services;
Subpart F is organized in the same coordination functions in outgoing or (2) if it wishes to work in a State in
way as in the proposed rule with cases); and § 96.56 (Reserved). which it is not licensed, work through
informal ‘‘divisions’’ after the first The Department has made a number an agency or person who is licensed or
section, § 96.29 (Scope). The Licensing of changes to subpart F in response to authorized and who is acting as an
and Corporate Governance division public comments. In particular, as exempted or supervised provider, or
includes § 96.30 (State licensing); discussed at section III, subsection B of through a public domestic authority of
§ 96.31 (Corporate structure); and the preamble, revisions have been made that State. Thus, an agency not licensed
§ 96.32 (Internal structure and to § 96.33’s insurance standard, to in a particular State may provide
oversight). The Financial and Risk § 96.37 on social service personnel services to a client in that State, through
Management division includes § 96.33 education and experience, to § 96.39’s another agency or person that is
(Budget, audit, insurance, and risk provision on waivers of liability, and to licensed or authorized to provide
assessment requirements) and § 96.34 the provisions relating to primary services in that State and additionally is
(Compensation). The Ethical Practices provider responsibility for supervised functioning as a supervised provider or
and Responsibilities division includes providers in the United States and for an exempted provider or through a
§ 96.35 (Suitability of agencies and foreign providers in Convention public domestic authority.
persons to provide adoption services countries §§ 96.45–46. Comments on These regulations are consistent with
these provisions, and changes to a the IAA, which states explicitly, in
consistent with the Convention) and
number of others, such as §§ 96.32, section 503(a), that the IAA is not meant
§ 96.36 (Prohibition on child buying).
96.34, 96.35, 96.38–44, and 96.47–54, to preempt State law unless a provision
The Professional Qualifications and
are discussed below. We also changed of State law is inconsistent with the
Training for Employees division
the sections on preparation of home Convention or the IAA.
includes § 96.37 (Education and It will continue to be up to each State
experience requirements for social studies in incoming cases (§ 96.47) and
child background studies in outgoing to determine if requirements to be
service personnel) and § 96.38 (Training licensed to provide adoption services in
requirements for social service cases (§ 96.53) to clarify that, under the
IAA, a supervised provider may prepare intercountry cases should be different
personnel). The Information Disclosure, from requirements to provide services in
Fee Practices and Quality Control a home study or child background
study. domestic adoption cases. Regardless of
Policies and Practices division includes how an individual State resolves this
§ 96.39 (Information disclosure and Licensing and Corporate Governance issue, however, an agency or person
quality control practices) and § 96.40 involved in intercountry adoption
(Fee policies and procedures). The Section 96.30—State Licensing
services under the Convention will need
division on Responding to Complaints 1. Comment: Several commenters to comply with these regulations.
and Records and Reports Management recommend revising § 96.30(c) to state 2. Comment: Two commenters believe
includes § 96.41 (Procedures for that agencies or persons work ‘‘in that it is essential that agencies and
responding to complaints and cooperation with’’ instead of ‘‘through’’ persons be permitted to work with other
improving service delivery); § 96.42 other agencies and persons licensed in agencies and persons licensed in
(Retention, preservation and disclosure different States. They believe this will different States. They ask that
of adoption records); and § 96.43 (Case clarify the fact that agencies are not accrediting entities pay close attention
tracking, data management, and limited to working only with families in to the activity under such relationships,
reporting). The Service Planning and the State(s) in which the agency is however, so that § 96.30 is followed
Delivery division includes § 96.44 licensed. Conversely, a commenter properly.
(Acting as a primary provider); § 96.45 requests that the regulations state that, Response: In deference to the
(Using supervised providers in the once an agency is accredited to provide important role that cross-State
United States); and § 96.46 (Using Convention adoption services, it is relationships and networks play in
providers in Convention countries). The authorized to provide those services in matching children from many different
division on Standards for Cases in any U.S. State where it is also licensed countries of origin with prospective
Which a Child Is Immigrating to the under State law. Another commenter adoptive parent(s) throughout the
United States (Incoming Cases) includes believes that a different license should United States, the regulations allow
§ 96.47 (Preparation of home studies in be involved in intercountry placements such relationships to continue. We
incoming cases); § 96.48 (Preparation and that being licensed to place believe that the regulations also allow
and training of prospective adoptive children domestically is not sufficient appropriate oversight of these
parent(s) in incoming cases); § 96.49 for placing internationally. relationships, so that no change is
(Provision of medical and social Response: We are not making any needed in response to this comment.
information in incoming cases); § 96.50 changes in response to these comments. The regulations, in particular subpart C,
(Placement and post-placement The Department recognizes that provide for a ‘‘primary provider’’ to be
monitoring until final adoption in intercountry adoptions in the United responsible for ensuring that all of the
incoming cases); § 96.51 (Post-adoption States frequently bring together an adoption services, as defined in § 96.2,
services in incoming cases); and § 96.52 agency licensed in one State and a are provided in a Convention case. The
(Performance of Hague Convention family located in a different State. The primary provider assumes responsibility
communication and coordination Convention and the IAA do not change for its use of supervised providers under
functions in incoming cases). The any applicable State requirements that the provisions of §§ 96.45 and 96.46,
division on Standards for Cases in an agency be licensed or otherwise which includes ensuring that those
Which a Child Is Emigrating From the authorized in the State to provide providers are in compliance with
United States (Outgoing Cases) includes services in the State. Under the IAA and applicable State licensing and
§ 96.53 (Background studies on the § 96.30(c), to provide adoption services regulatory requirements in all
child and consents in outgoing cases); in a Convention case, an agency or jurisdictions in which they provide
§ 96.54 (Placement standards in person must be: (1) Licensed or adoption services. Failure to do so may
be grounds for the accrediting entity to to become licensed, depending on the Response: The Department agrees that
take adverse action against the primary laws of the State in question. one of the critical functions that
provider, and may jeopardize the accredited agencies and approved
Section 96.32—Internal Structure and
primary provider’s accreditation or persons will serve is to provide
Oversight
approval status. The Department oversight to the supervised providers
believes that this system will ensure 1. Comment: Numerous commenters with whom they work. Therefore, in
proper monitoring of supervised request that agencies and persons be response to these comments, the
providers by primary providers. required to include adult adoptees on Department has added a new standard
their boards of directors or other similar to the final rule, as § 96.32(d), which
Section 96.31—Corporate Structure governing bodies to provide input on reads: ‘‘The agency or person has in
1. Comment: Several commenters the needs and concerns of the place procedures and standards,
oppose allowing agencies that qualify intercountry adoption community. pursuant to §§ 96.45 and 96.46, for the
for nonprofit tax status under State law Response: The Department agrees that selection, monitoring, and oversight of
alone from receiving accreditation. They the standard should encourage supervised providers.’’
suggest that only agencies that have accredited agencies and approved We have also added a new standard
qualified for nonprofit tax status under persons to have boards of directors that as § 96.32(e). Section 96.32(e) requires
§ 501(c)(3) of the Internal Revenue Code include individuals who understand the the agency or person to disclose to the
should be permitted to become an concerns of adoptees and other accrediting entity any other names by
accredited agency. One commenter individuals involved in adoptions. which the agency or person is or has
requests that the Department bear in Therefore, the Department has amended been known, under its current or any
mind that several countries already have § 96.32(b) to add a standard that former form of organization, and
regulations that would explicitly require agencies and persons have a board of addresses, and phone numbers used
U.S. agencies to have nonprofit status directors or a similar governing body when such names were used. It also
that, among other things, includes one requires the agency or person to disclose
and/or tax-exempt status under
or more individuals with experience in the name, address, and phone number
§ 501(c)(3) of the U.S. Tax Code.
adoption, including, but not limited to, of current directors, managers, and
Response: We left § 96.31(a) of the adoptees, birth parents, prospective
proposed rule unchanged in the final employees, and, if any such individual
adoptive parent(s), and adoptive previously served with another provider
rule. For accreditation purposes, parents. Articles 11 and 22 of the
agencies must have nonprofit status of adoption services, the name, address,
Convention expressly recognize the
under the laws of any State or must and phone number of the provider of
importance of having agencies and
qualify for nonprofit tax treatment which they were a director, manager, or
persons directed and staffed by persons
under § 501(c)(3) of the Internal employee. Additionally, the rule now
qualified by their ethical standards and
Revenue Code. The Department does requires that the agency or person must
by training or experience. We believe
not believe there is sufficient provide information on any entity that
that adding this flexible standard is
justification to increase the regulatory it currently uses or intends to use as a
consistent with these articles, and that
burden of the rule by requiring all supervised provider. These
there is no reason to limit the standard
agencies to obtain nonprofit status modifications to § 96.32(e) will help to
to adoptees.
under § 501(c)(3) and under State law. 2. Comment: A few commenters ensure that an accrediting entity may
Nothing in this rule prohibits agencies emphasize that approved persons investigate an agency’s or person’s past
from qualifying as a nonprofit under should have the same education, and present practices, the past and
both Federal and State law, if they so adoption service experience, and present practices of their directors,
choose, and an agency or person will of management credentials that the managers, and employees, and their
course have to obtain § 501(c)(3) status regulations require of the chief selection and oversight of supervised
if so required by a particular Convention executive officer (CEO) of an agency. providers.
country in which the agency or person Response: Individual approved Financial and Risk Management
wishes to operate. persons will need to oversee any
2. Comment: A commenter supervised providers and ensure Section 96.33—Budget, Audit,
recommends that attorneys and other effective use of resources and Insurance, and Risk Assessment
individual practitioners be required to coordinated delivery of services. The Requirements
be licensed to provide adoption services Department therefore agrees that it is 1. Comment: Commenters request
under State law, rather than only important that they have education, clarification of the budget and audit
authorized to provide adoption services, adoption service experience, and requirements. Some commenters state
in order to become approved persons. management expertise similar to that that annual independent audits are too
Response: The Department declines to which we expect of the CEO of an expensive and burdensome.
change the rule. IAA section agency. Therefore, the Department has Response: In response to these
203(b)(1)(G) requires only that nonprofit changed § 96.32(a) to apply to situations comments, the Department has revised
agencies must be licensed to provide where the person is an individual. § 96.33(a) and § 96.33(b). Subsection (a)
adoption services in at least one State in 3. Comment: Several commenters requires that the agency or person
order to become accredited. Section suggest that a new standard be added to operates under a budget that discloses
203(b)(2) of the IAA does not apply the § 96.32, which would read, ‘‘The agency all remuneration, regardless of its form,
requirement to have a State license to or person has in place appropriate paid to the agency’s or person’s board of
persons (for-profit agencies and procedures and standards, pursuant to directors, managers, employees, and
individuals) that seek to become §§ 96.45 and 96.46, for due diligence on supervised providers. Agencies and
approved. We note that § 96.30(a) selection, monitoring, and oversight of persons should find subsection (b) less
requires that persons be authorized by supervised providers.’’ Others are burdensome than the proposed rule, in
State law to provide adoption services concerned that accrediting entities have that it now requires annual internal
in at least one State, which may have sufficient information to check on an budget review and oversight and
the practical effect of requiring persons agency’s or person’s past practices. independent audits only every four
years. The yearly internal financial assessment, including any risks arising suggest that the regulations allow
review reports must be submitted for from working with supervised providers prospective adoptive families and
inspection by the accrediting entity. We or requiring clients to sign limited and agencies and persons to enter into
believe these provisions strike a balance specific waivers. binding arbitration with capped awards
between ensuring financial soundness The Department recognizes that in order to limit litigation and thereby
and transparency and reducing the costs requiring risk assessments is a change encourage insurers to underwrite
of annual external audits. from the current practice of many liability insurance for agencies and
2. Comment: Numerous commenters adoption service providers. The persons.
request that the phrase ‘‘independent Department is requiring a risk Response: The IAA does not give the
professional assessment of risks’’ in assessment so that the agency or person Department the authority to regulate the
§ 96.33(g), on insurance coverage, be can use it to determine the appropriate insurance industry. Nor does the
more clearly defined. Commenters amount of insurance coverage needed to Department believe it can or should
believe that an agency’s or person’s protect families working with accredited require parents to enter into binding
management, insurance agent, financial, agencies and approved persons as well arbitration agreements with agencies or
or legal counsel should be allowed to as for the protection of the agencies and persons. Nothing in the IAA or these
conduct a risk assessment review. persons themselves. regulations would prevent prospective
Several commenters are concerned that 3. Comment: Several commenters adoptive parent(s) and agencies or
requiring a review by an independent support the standard on professional persons from agreeing to use binding
risk assessment firm will cause undue liability insurance coverage, but are arbitration as opposed to litigation in
financial hardship for small agencies extremely concerned about the lack of the event of a problem, however. Thus
and will raise the costs of accreditation available insurance. Commenters state it is possible that practices will develop
and approval. As well, a commenter that insurance coverage options are that will respond to some of these
believes that agencies or persons should limited, and coverage can be suggestions.
not be required to include in a risk unaffordable for many agencies or 5. Comment: A commenter
assessment an evaluation of the risks of persons. Commenters request that the recommends that the regulations
using supervised providers in the Department explore alternative means provide that, if a company provides
United States and abroad. Other for agencies and persons to obtain insurance policies to any nonprofit
commenters believe that an agency or insurance coverage. Commenters organizations, it must provide insurance
person should be allowed to determine requested that the Department consider to adoption placement agencies. This
its own level of risk and purchase the the following suggestions: (1) Agencies commenter perceives that insurance
amount of insurance that it believes is and persons self-insuring through the companies discriminate against
necessary. use of a bond account held by a public adoption placement agencies. A
Response: The Department has authority; (2) agencies and persons self- commenter requests that insurers be
changed the risk assessment standards insuring through the purchase of a required to consider the differences in
in response to concerns that the Certificate of Deposit in the name of the the services offered by agencies before
proposed rule was too burdensome. The agency and a public authority; (3) determining coverage, such as whether
final rule standard provides for the establishment by the Department of a the agencies place orphans or whether
agency or person to conduct a risk federally backed insurance program; (4) they place children whose birth parents
assessment, but no longer provides that establishment of a Federal insurance consent to an adoption. The commenter
the assessment be conducted by an commission; (5) a Hague insurance also suggests that there should be
independent professional. An agency’s commission established to offer federally-mandated guidelines to govern
or person’s management, insurance insurance coverage at a reasonable rate; fee increases by insurance companies.
agent, financial, or legal counsel may and/or (6) an insurance waiver program Response: As noted, the IAA does not
conduct the assessment. Additionally, for agencies and persons who show that give the Department authority to
the assessment must include a review of they are unable to secure insurance regulate the insurance industry,
information on the availability of coverage despite attempts to do so. including the types of coverage
insurance coverage for Convention- Response: The IAA requires a insurance companies must provide or
related activities. The agency or person standard on insurance coverage. The the fees charged for insurance.
must use the assessment to meet the Department understands the concern of 6. Comment: Many commenters
requirements of § 96.33(h), which many commenters about the availability believe that the requirement in
requires an agency or person to and affordability of professional liability § 96.33(g) to maintain a minimum of
maintain professional liability insurance insurance coverage for adoption service $1,000,000 per occurrence in insurance
in amounts reasonably related to its providers, but anticipates that such is excessive and suggest a lower amount
exposure to risk, and to evaluate what coverage will become available and or that an amount not be specified in
other types of insurance to carry. To affordable as the market responds to the this rule. Commenters are concerned in
conform to changes in §§ 96.45 and demand the standard will create. These particular that the insurance
96.46 (removing requirements for suggestions for developing alternatives requirements will increase the costs of
assumption of liability for supervised to insurance coverage by existing market adoption. Many commenters point out
providers) and § 96.39(d) (allowing use mechanisms in any event far exceed the that professional liability insurance is
of waivers), we have deleted the authority granted to the Department by very difficult to obtain; some say that
requirement that the risk assessment the IAA. insurance companies commonly refuse
include an evaluation of the risks of 4. Comment: Several commenters coverage to adoption service providers,
providing services directly to clients suggest that the Department request that particularly if the provider has ever
who do not sign blanket waivers of the insurance industry analyze been party to a lawsuit, and others state
liability and the risks of working with underwriting intercountry adoption that their coverage was cancelled after
supervised providers. The individual insurance policies to parents to increase just one insurance claim. Those that do
conducting the risk assessment will now the likelihood that insurers may be more have coverage find their insurance
have discretion to determine the willing to provide an agency or person premiums to be expensive. Another
elements to complete the risk insurance coverage as well. Commenters commenter, however, maintains that
liability insurance coverage is readily person to use a risk assessment to the respective roles of accrediting
available to qualified agencies and determine the actual amount of entities and agencies and persons in the
persons. Some commenters also agree professional liability insurance to be transfer of cases.
with the $1,000,000 per occurrence maintained under § 96.33(h)—that is, to Response: As discussed in detail in
liability insurance requirement and determine if more coverage than the the responses to comments on §§ 96.7
believe the requirement is essential for minimum is appropriate. (above), 96.77 (below), and 96.87
the protection of adoptive families. One 7. Comment: Some commenters are (below), we have modified a number of
commenter suggests requiring an concerned that specifying an insurance provisions in the rule relevant to
umbrella insurance policy instead of an amount will encourage lawsuits for that Convention case transfers in the event
aggregate limits policy. amount or greater. Another commenter that an agency or person is no longer
Response: Section 203(b)(1)(E) of the thinks that the insurance requirement providing services in Convention
IAA requires that a standard be in force will keep agencies and persons from adoption cases. Our modifications
that provides for ‘‘adequate liability placing special needs children due to include adding a standard in § 96.33(e)
insurance for professional negligence fear of increased litigation. to require that an agency or person must
and any other insurance that the Response: As noted, the Department have a plan in place to transfer
Secretary considers appropriate.’’ cannot avoid drafting a professional Convention cases if it ceases to provide
Therefore, the issue is not whether to liability insurance standard, because the or is no longer permitted to provide
have a standard requiring professional IAA explicitly requires agencies and adoption services in Convention cases.
negligence insurance (also referred to as persons to have ‘‘adequate’’ professional The plan must include provisions for
professional liability insurance), but liability insurance. Requiring a certain organized closure and reimbursement to
what amount is ‘‘adequate’’ and whether amount of insurance coverage in the clients of funds paid for services not
additional insurance requirements are aggregate, rather than per occurrence, rendered.
‘‘appropriate.’’ For this reason, the should reduce the likelihood of
increased litigation, since plaintiffs will Section 96.34—Compensation
Department is maintaining an insurance
standard. not consider that they can necessarily 1. Comment: A commenter suggests
The Department has revised the receive the total amount. The that it is standard practice to pay
standard, however, to require that Department does not believe that the incentive fees to individuals who refer
professional liability insurance be insurance requirement will discourage prospective adoptive parent(s) and
maintained in amounts reasonably agencies and persons from placing questions why commissions, incentives,
related to exposure to risk, but in no special needs children. If an agency or and contingency fees cannot be paid to
case in an amount less than $1,000,000 person is in compliance with the a person providing a referral.
in the ‘‘aggregate.’’ As discussed at disclosure requirements of § 96.49, then Response: Section 96.34(a), which is
section III, subsection B.1 of the it will disclose to prospective adoptive limited to individuals providing
preamble, the Department made this parent(s) any known special needs of intercountry adoption services, does not
decision after reviewing the range of the child, which should help decrease directly deal with the issue of clients
comments on this issue and engaging a the number of claims against agencies or who are paid incentives for referring
consultant to gather additional persons. other potential clients, such as
information on available insurance 8. Comment: Commenters are prospective adoptive parent(s), to an
coverage and industry practices in concerned about the cash reserve agency or person. This practice must
underwriting policies. In summary, we provision in § 96.33(e). Commenters conform, however, to the general
now believe that approving a $1 million also seek insertion of the word principle that fees may not be paid if
aggregate standard instead of $1 million ‘‘charitable’’ to § 96.33(f). they are made contingent on placing or
per occurrence is adequate and Response: We have reduced the locating a child for an adoptive
appropriate. Setting the standard to period of time for which the agency or placement.
require a minimum of $1 million in the person must maintain on average The Convention directs public foreign
‘‘aggregate’’ establishes an outer limit on financial resources to meet its operating authorities and public domestic
total coverage and not a per incident or expenses to two months. We also authorities to prevent improper
claim limit. changed § 96.33(e) to allow assets, as financial gain in connection with an
Setting the standard only for coverage well as cash reserves and other financial intercountry adoption. Further, section
in the aggregate potentially provides resources, to be taken into account in 203(b)(1)(A)(iv) of the IAA specifically
more flexibility to both agencies and determining whether the agency is bars agencies and persons from
persons seeking insurance and the maintaining sufficient financial retaining personnel on a ‘‘contingent fee
underwriting company to set lower ‘‘per resources. These changes are meant to basis.’’ Generally speaking, a fee is
occurrence’’ limits within the $1 million reduce the burden that this standard contingent if it is only paid if an
aggregate coverage, should the market imposes on agencies and persons, while adoption is completed. The standard
respond by offering policies tailored to still requiring sound financial practices. prohibits contingency fees consistent
the Convention standard. Setting the We have also amended the standard to with the IAA statutory mandate. We are
amount of coverage required in the require the agency or person to take into maintaining the prohibition in
aggregate at $1 million, while still account not only its projected volume of § 96.34(a), and have clarified that the
requiring that coverage be related to cases, but also its size, scope, and standard prohibits contingency fees for
actual risk, also strikes a balance financial commitments. each child ‘‘located’’ for an adoptive
between the burden the insurance We have also inserted the word placement, in addition to contingency
standard imposes on agencies and ‘‘charitable’’ before donation in fees for each child ‘‘placed’’ for
persons seeking to provide Convention § 96.33(f), as we agree that only adoption.

adoption services and protecting the charitable donations should be accepted 2. Comment: Commenters who would
interests of birth parents, prospective under the standard. like the financial aspects of the adoption
adoptive parent(s), and children. 9. Comment: Some commenters, as process to be more transparent suggest
The final rule standard in § 96.33(g) noted in other subparts, were concerned that agencies or persons be required to
continues to require the agency or about the case transfer procedures, and account for all revenues and that any
payments made to third-party vendors paid are unreasonably high in relation standards will help agencies and
who are related to a staff member of an to services rendered. We have made one persons uphold high ethical practices
agency or person should be required to change to guide this analysis, requiring when providing adoption services.
be reported along with information that the compensation be judged by Response: The issue of mandatory
stating the amount of payment and the taking into account the country in standards is discussed in the responses
type of service rendered. Many other which the adoption services were to comments on § 96.27 and at section
commenters support the proposed provided and the relevant norms for II, subsection B of the preamble, above.
compensation regulations stating that compensation within that country, to The regulations include numerous
they provide reasonable guidance to the extent known to the accrediting ethical standards. The extensive
agencies on how to structure entity. We have also added supervised disclosure standards in § 96.35, which
compensation for intercountry providers to the list of those whose remain largely unchanged from the
adoptions. compensation must meet the proposed rule, are designed to ensure
Response: The Department has reasonableness standard of § 96.34(d). that agencies and persons are not
maintained the general structure of We believe this approach, which avoids violating any ethical standards or any of
§ 96.34 and has added § 96.34(f), which inappropriately setting caps or range the guiding principles of the Convention
requires that agencies and persons limits on salaries and wages, will be or the IAA, except that § 96.35(c) does
identify any third-party vendors to workable, particularly because have new language to clarify that the
whom clients are referred for non- accrediting entities will often have disclosure requirements for agencies
adoption services. The agency or person access to comparable data on agencies and person require disclosure of
must disclose any corporate, financial, and persons under their authority. information related to individual
or familial relationship with such directors, officers, and employees
vendor. We have also made a related Ethical Practices and Responsibilities associated with the agency or person in
change to § 96.40(c)(1), setting a Section 96.35—Suitability of Agencies any operations under a different
standard that requires disclosure of all and Persons To Provide Adoption corporate or professional name. State
third-party fees to prospective adoptive Services Consistent With the Convention licensing regulations or other State laws
parent(s). For more information on the also may contain mandatory ethical
reasons for this modification, see the 1. Comment: To ensure that the standards for agencies, persons, or
responses to comments for § 96.40(c). referral process is based on fair, legal, individuals in certain professions.
3. Comment: Commenters seek and objective criteria, one commenter 3. Comment: One commenter requests
clarification as to whether or not fees- requests that the Department monitor that the provisions in § 96.35 include
for-services constitute incentive fees. the ethical practices of those involved in any individual working for the agency
They recommend that employees and the referral process. or person if such individual is involved
supervised providers be paid an hourly Response: It is difficult to police in any of the ‘‘adoption services’’
rate or salary for services actually unethical practices in referrals of defined in § 96.2.
rendered, not on a contingency fee children eligible for adoption from Response: Section 96.35(c) requires an
basis. Paying employees or supervised countries of origin. Nevertheless, § 96.46 agency or person (for its current and any
providers a regular salary minimizes the sets out standards that an agency or former names) to disclose information
incentive for a person to make more person must follow in using supervised about its directors, officers, and
referrals to earn higher fees. providers in other countries, including employees to the accrediting entity.
Response: Fees for adoption services by ensuring that such foreign supervised (Section 96.35(d), as well, requires
do not constitute incentive fees. We providers do not engage in practices disclosures from persons who are
have clarified in § 96.34(a), however, inconsistent with the Convention’s individual practitioners.) Thus, this
that the standard disallows any principles of furthering the best standard already requires the
contingency fee arrangements related to interests of the child and preventing the disclosures related to individuals
locating or placing a child for adoption. sale, abduction, exploitation or providing adoption services requested
For further information, see the trafficking of children. See also the by this comment. Also, as noted
response to comment 1 for § 96.34. responses to comments on § 96.46. previously, § 96.32(e)(3) now requires
4. Comment: Commenters question Ultimately, however, it is the that the agency or person disclose the
what or who will determine whether the responsibility of the country of origin’s names of any entity it intends to use, or
fees, wages, and salaries paid to the competent authorities to ascertain if is using, as a supervised provider.
directors, officers, and employees of an Article 4 requirements for determining 4. Comment: Some commenters
agency or person are ‘‘unreasonably if a child is eligible for adoption have request that an agency or person be
high.’’ One commenter feels that a free been met. If it appears that the Central required to disclose any instance in
enterprise system should determine Authority or public foreign authorities which it lost its license, even for a brief
fees, wages, and salaries. Other of a country of origin have improperly period of time. Other commenters are
commenters recommend that fees, referred a child who is not eligible for concerned that agencies and persons
wages, and salaries be evaluated in light adoption, then the two Central providing multiple services will be
of the country’s economy and be Authorities (country of origin and denied accreditation or approval
commensurate with the cost of living in receiving country) involved will need to because their license was suspended or
the country of origin. resolve the problem. permanently revoked for violations in
Response: The concept of 2. Comment: A commenter requests service areas other than intercountry
‘‘reasonableness’’ does not lend itself to that language on ethical standards be adoption.
bright line rules, but rather requires an mandatory. The commenter also wants Response: The Department has
assessment in light of a variety of the Department to make the oversight changed § 96.35(b)(1) to delete the word
relevant factors. We have crafted mechanisms related to specific ‘‘permanently.’’ Thus, an agency or
standards in § 96.34(d) and (e) that standards more explicit. Other person will need to disclose any
identify the factors the Department commenters support the standards on instances in which it lost the right to
believes should be considered in suitability as written. One of these provide adoption services for any period
determining if fees, wages, or salaries commenters thinks that the proposed of time in any State or country. In
addition, the Department has changed because another party is unwilling to and respond to the complaints. These
§ 96.35(b)(5) to make it clear that an modify the disclosure provisions of a written records must be made available
agency or person (under its current or settlement agreement, and the to the accrediting entities and the
any former names) must disclose to the accrediting entity will have ample Department, upon request.
accrediting entity information on authority to determine, on a case-by- 8. Comment: One commenter suggests
complaints related to the agency’s or case basis, what steps an applicant that agencies and persons evaluate the
person’s provision of adoption-related should be asked to take to provide moral character of their employees,
services filed with any State, Federal, or sufficient information about the basis associates, and supervised providers.
foreign regulatory body of which the and disposition of a lawsuit, including Response: Section 96.35(c)(5) requires
agency or person was notified. A change seeking a waiver of any confidentiality disclosure of businesses or activities
was also made to § 96.35(b)(6) to require provisions. that have been or are currently carried
disclosures of government 6. Comment: One commenter states out by individual directors, officers, or
investigations, criminal or child-abuse that the term ‘‘malpractice complaint’’ employees of the agency or person,
charges, or lawsuits related to the in proposed rule § 96.35(b)(6) is a subset which are inconsistent with the
provision of child welfare or adoption- of ‘‘written complaints’’ in § 96.35(b)(5), principles of the Convention.
related services. We have not changed while others appear to believe that it is Additionally, § 96.35(b)(9) requires an
the requirement that the agency or not a duplicative term. agency or person to disclose to the
person disclose any licensing Response: The Department has accrediting entity their prior or current
suspensions for cause or sanctions by modified § 96.35(b)(6) to delete association, if any, with businesses or
oversight bodies, as we believe such reference to ‘‘malpractice complaints.’’ activities that are inconsistent with the
information will be valuable to the The requirement to disclose the basis principles of the Convention. The
accrediting entity even if the license and disposition of lawsuits related to Department believes these standards
pertained to another service area. the provision of child welfare or provide specific guidance to accredited
5. Comment: Some commenters adoption-related services in agencies and approved persons on
recommend that the Department keep § 96.35(b)(6) is sufficient to cover
ethical adoption practices. To the extent
the requirement in § 96.35(b)(5) that malpractice complaints.
that the ‘‘moral character’’ of individual
agencies and persons disclose to 7. Comment: Commenters are
concerned that States, as well as employees is a separate issue, it is
accrediting entities any disciplinary beyond the scope of these regulations.
actions or written complaints, including agencies and persons, have not kept
sufficient records of every complaint. 9. Comment: Commenters request that
the basis and disposition of such
Commenters suggest that parents send background checks be conducted on all
complaints, for the past ten years. Other
all past complaints to accrediting employees of an agency or person. One
commenters feel that the ten-year
entities for review. Several commenters commenter notes that the proposed rule
requirement is too long and recommend
request that a central registry be requires that some employees have
three to five years. Several commenters
established to record and verify that an background checks, and notes that
recommend that agencies and persons
agency or person is in good standing. States may not be able to complete
have to disclose only substantiated
Response: We have revised the criminal background checks and child
written complaints or lawsuits in which
the agency or person was found liable. standard at § 96.35(b)(5) to limit the abuse clearances for such individuals
Commenters are also concerned that complaints that must be disclosed to without additional statutory authority.
unsubstantiated accusations will delay written complaints over the prior ten- Response: Section 96.35(c)(3) requires
an agency’s or person’s accreditation/ year period that were filed with Federal an agency or person to disclose to the
approval application if ‘‘written authorities or public domestic accrediting entity the results of a
complaint’’ is not more clearly defined authorities, and of which the agency or criminal background check and child
in § 96.35(b)(5). Other commenters are person was notified. This is more abuse clearance for U.S. employees of
concerned that information about congruent with the disclosure agencies or persons who work directly
lawsuits will not be disclosed because requirement in § 96.35(b)(6) related to with parent(s) or children, as well as for
of confidentiality provisions in any lawsuits and other investigations by those in senior management positions
settlement agreements. governmental authorities, and clarifies (unless such checks have been included
Response: We have modified that the intent is to require disclosure of in the State licensing process). This
§ 96.35(b)(5) to limit the disclosure complaints filed with regulatory requirement furthers the IAA’s mandate
requirement to those written complaints authorities, such as licensing that the agency or person must have a
filed with any State or Federal authorities, rather than complaints sufficient number of appropriately
regulatory body and of which the made directly to the agency or person. trained and qualified personnel.
agency or person was notified. The We believe the agencies or persons will The accrediting entity must have
agency or person must still disclose the ordinarily have information about such criminal and child abuse background
outcome of all such complaints. significant complaints available, even information for this subgroup of
The Department declines to change for the period before these regulations employees to assess if they are capable
the ten-year requirement for disclosure take effect. of safely providing services directly to
of complaints in § 96.35(b)(5), because After the initial round of children and their families. Broadening
we believe ten years of information will accreditation/approval has been the group of employees subject to these
best allow accrediting entities to make concluded and the Convention has background checks would not
an informed accreditation entered into force, the accrediting entity substantially contribute to the
determination. We also have not will also have available to it information accrediting entity’s evaluation of the
changed § 96.35(b)(6), notwithstanding on complaints made directly to the agency’s or person’s capacity to provide
the concern that confidentiality agency or person, under § 96.41. This adoption services, however, and would
provisions in settlement agreements will standard requires accredited agencies not warrant imposing the financial
prevent disclosure of information about and approved persons to keep written burden, administrative burden, and
lawsuits. We do not want agencies or records of complaints against them as other complexities associated with
persons to be prevented from applying well as the steps taken to investigate obtaining and considering background
information in the hiring process of all employees because we believe it the DHS regulation, the requirements of
employees. sufficient to focus on the acts of senior § 96.36 are generally the same as those
This regulation of course cannot in management personnel—that is on those of 8 CFR 204.3.
itself authorize States to implement in a position to control and manage the 2. Comment: Some commenters
criminal background investigations and agency’s or person’s finances. Also, to request that the regulations stipulate
child abuse clearances. The Department ensure compliance with the what type of expenses can be paid, and
recognizes that, while the use of Convention’s principles, the regulations under what circumstances, to avoid
criminal and child abuse background have been changed at § 96.35(c)(5) to coercive situations and to protect
checks is standard in many States, require disclosure of businesses or children and birth parents. A
especially in the context of employees activities that are inconsistent with the commenter recommends that there be
who work with children, other States principles of the Convention and that no expansion in the type of adoption
specify unique parameters and ‘‘have been or are currently’’ carried out services expenses that can be covered in
restrictions for obtaining and using by individual directors, officers, or an individual case. Other commenters
criminal background checks. In employees of the agency or person. are very concerned that the standard not
addition, criminal background checks 12. Comment: One commenter include prohibitions against certain
may invoke protections of other Federal believes that social workers, like expenses that are permitted or required
laws, such as the Fair Credit Reporting lawyers, should be required to provide by countries of origin, to avoid
Act. To be clear, § 96.35(c)(3) does not a certificate of good standing from their precluding U.S. citizens’ eligibility to
supersede or supplant any other Federal State licensing authority. If they are not adopt in certain Convention countries.
or State statute or regulation that might in good standing, the social worker must Response: The Department believes
otherwise restrict access to or provide an explanation and supporting that these concerns are already
consideration of background checks. If documentation. The commenter addressed in the rule, so that no
the State criminal background check is recommends that any disciplinary revision is required. First, the standard
unavailable by operation of State law, action taken against the individual in § 96.36(a) clearly prohibits agencies
then the agency or person can so should be immediately reported to the and persons from ‘‘giving money or
demonstrate. State licensing authority and the other consideration, directly or
10. Comment: One commenter accrediting entity. indirectly, to a child’s parent(s), other
requests that agencies or persons be Response: To ensure the high individual(s), or an entity as payment
required to disclose whether or not they standards of social workers who operate for the child or as an inducement to
have ever operated under a different as approved persons and provide release the child.’’ This means that, if
corporate name. Convention adoption services, the the intent of any payment is to buy a
Response: Both § 96.35(b) and (c) now Department has added a standard at child or to obtain consents for adoption,
require disclosures related to operations § 96.35(d)(4) to require social workers then the agency or person has violated
under a different corporate name, as seeking approval to provide a certificate this standard. This standard, derived
does § 96.32(e). The Department made of good standing or an explanation, from the current, longstanding DHS
these changes so that agencies and accompanied by relevant regulations at 8 CFR 204.3, protects
persons could not avoid disclosing documentation, of why he or she is not birth parents, children, and adoptive
information by applying for in good standing, for every jurisdiction parents. Regardless of how adoption
accreditation or approval under a in which he or she has been licensed. services fees are described,
different name than they formerly used. If an accrediting entity takes adverse characterized, or classified, if the fee is
See also responses to comment 3 on action against a social worker acting as remitted as payment for the child, or as
§ 96.32 and comment 11 on § 96.35. an approved person that alters his or her an inducement to release the child, then
11. Comment: Commenters request approval status, the accrediting entity the standard is violated and appropriate
that an agency or person be required to must report that adverse action to the action may be taken against an agency
disclose any financial irregularities on State licensing authority, pursuant to or person. The standard takes into
the part of the agency or person and any revised § 96.77(d). account that the country of origin’s
of its employees. Commenters adoption laws and procedures, not the
recommend that an agency’s or person’s Section 96.36—Prohibition on Child Department’s regulations on U.S.
previous business history be included Buying adoption service providers, determine
with its application for accreditation or 1. Comment: A commenter believes what type of expenses, such as the care
approval. Commenters also request that that there is already a prohibition of the child or contribution for child
agencies and persons be required to against child buying in DHS regulations protection services, must be covered as
disclose any current and past business and asks the reason for re-writing the part of the adoption services fees. The
activities that are inconsistent with the law. Convention country of the child’s origin
principles of the Convention. Response: The current DHS has the authority to determine allowable
Response: We modified the rule to prohibition on child buying, codified at adoption expenses in that country as
require agencies and persons to make 8 CFR 204.3, applies to intercountry long as the expenses are consistent with
disclosures to accrediting entities about adoption procedures, as defined in the the Convention requirements of Article
individual directors, officers and INA and DHS regulations. For a 4 (consents may not be induced by
employees under not only their current standard to be effective in the payment or compensation of any kind)
corporate names, but also under any accreditation/approval context, and other requirements are followed. In
former names. Additionally, however, it must be included in the its role as Central Authority, the
§ 96.35(c)(2) requires an agency or Department’s accreditation and Department can, however, communicate
person to disclose any convictions or approval regulations, 22 CFR Part 96. any concerns about a country of origin’s
current investigations for acts involving Otherwise, the standard may not be laws and provisions for allowable
financial irregularities by directors, used as a basis for denying adoption services expenses.
officers, or employees in senior accreditation/approval or taking adverse Finally, to address the concerns of
management positions. The Department action. Thus, the standard in § 96.36 is commenters who believe the broad
does not require such disclosure for all not duplicative. To be consistent with prohibition against child-buying could
be interpreted by accrediting entities to Response: States, not the Federal ‘‘reasonable’’ payment for services in
exclude certain types of fees, such as the government, license agencies. Because § 96.36. Another commenter wants no
charitable contribution required in State law governs licensing issues, we change in the language defining
China, the standard highlights that, if do not have the authority to revoke State ‘‘reasonable payments for activities’’
permitted or required by the child’s licenses. To be responsive to the because it provides an appropriate level
country of origin, reasonable payments concerns behind this comment, of specification.
for the provision of child welfare and however, we have modified the Response: The Department has not
child protection services may be made. standard in § 96.77(d) to make it clear changed the language in § 96.36, setting
The Convention and the IAA do not that an accrediting entity must notify the standard that payments for
prohibit contributions to support family the State licensing authority of the necessary activities related to adoption
and child protection services in agency or person in question if the be reasonable, because it mirrors the
Convention countries. If the accrediting entity takes adverse action principles in the Convention and the
contribution is not intended to induce that impacts the accreditation or IAA.
an individual to place a child for approval status of the agency or person. 8. Comment: One commenter suggests
adoption, it is not inconsistent with 5. Comment: One commenter requests the creation of a central organizing
these accreditation/approval standards. that birth parents be made aware of how authority that would verify
Therefore, we are not prohibiting a to pursue complaints. relinquishments before a child is placed
required contribution to an orphanage Response: Under § 96.41(a) agencies in an adoption-related orphanage.
or State welfare organization in a child’s and persons must provide contact Response: This suggestion is beyond
Convention country. In § 96.40(b)(6), information for the Complaint Registry the scope of these regulations on
however, we do require that the client to their clients, including birth parents accreditation/approval. Pursuant to
receive an explanation of the intended in cases of children emigrating from the Article 4 of the Convention, the
use of the contribution and the manner United States to a Convention country. competent authority in the child’s
in which the transaction will be Section 96.41(b) also requires agencies Convention country (depending upon
recorded and accounted for. Overall, we and persons to permit any birthparent to the country of origin, this may be the
believe that the standard is responsive lodge complaints about adoption Central Authority, a court, or other
to the significant concerns about having services. government authority) has the
the flexibility to take account of In cases of children immigrating to obligation to ensure that consents to an
Convention country practices while the United States, the child’s adoption have been given freely and
upholding the basic principle against Convention country should address without inducement or compensation of
payments for a child. birthparent complaints about violations any kind.
3. Comment: Several commenters of the Convention. Once a complaint 9. Comment: Two commenters request
believe that setting fee limits for has been lodged with the child’s that the agency or person ensure that
adoption services is the only way to Convention Country, the authorities of employees and agents are aware of the
prohibit child buying. that country have the responsibility to prohibitions of the Foreign Corrupt
Response: Please see § 96.34(a) and investigate the matter and to ensure Practices Act (FCPA) as enumerated at
(d) and the responses to comments on compliance with the Convention. If the 15 U.S.C. 78-dd. They believe the FCPA
these sections, above. Although we complaint involves a U.S. agency or has been underutilized and should be
understand and share the commenters’ person, the Central Authority may employed more often.
concerns regarding fee limits, this rule communicate the complaint directly to Response: The FCPA is an anti-
does not set fee caps for adoption the Department, to the Complaint bribery statute that agencies and persons
services and the Department has no Registry or to the accrediting entity already must comply with regardless of
authority under the IAA to set fees for overseeing the agency or person at issue. these regulations. The Department of
adoption services. Setting caps would 6. Comment: One commenter requests Justice is responsible for all criminal
be impractical and difficult to enforce, that all parties involved in an adoption enforcement of the FCPA and shares
especially if the expectation was that proceeding sign a sworn statement authority over civil enforcement with
the Department would somehow make stating how much compensation they the Securities and Exchange
countries of origin conform to the received for adoption services as a Commission. We note in response to
Department’s fee structure. We would prerequisite to approval of a petition on this comment that, under § 96.72, an
be unable to set fee caps that would take behalf of the adopted child to enter the accrediting entity must refer to the
into account all of the variables in the United States. The commenter believes Attorney General or other law
various countries that are involved in this statement should include a enforcement authorities any
Convention adoptions, not to mention declaration that the parties have not substantiated complaints that involve
the fluctuations in exchange rates and paid any illegal sum to officials or made conduct that is in violation of Federal
currency values. We do agree, however, any other illegal payments. law, an obligation that encompasses the
that the services the fees relate to should Response: We are making no change FCPA. We have not added a specific
be readily transparent, provided to in response to this comment. The reference to the FCPA in the standards
clients, and subject to accrediting entity concern expressed may be addressed, in because the standards similarly require
oversight. Thus, we have included part, by the fee transparency provisions agencies and persons to comply with all
standards in § 96.40 that require of the rule, but these regulations relevant State and Federal law, again
agencies and persons to provide governing the accreditation/approval of encompassing the FCPA. We note, as
prospective adoptive parent(s) with adoption service providers are not an well, that the standards on
extensive information on fees and appropriate vehicle to address the compensation (§ 96.34) and prohibiting
expenses related to the adoption. conduct of parents or impose additional child buying (§ 96.36) should help
4. Comment: Several parents wish to requirements on the DHS petition prevent agencies and persons from
ensure that any agency that gives money process. engaging in behavior that might trigger
or other consideration as payment for a 7. Comment: One commenter states the FCPA.
child will lose its State license to be an that it is critical to have defining criteria 10. Comment: Several commenters are
adoption agency. that will determine what constitutes concerned that the current regulations
provide no complaint or investigative that any such individuals, regardless of and (3) supervised by an employee of an
process for handling allegations of whether they are called contractors, accredited agency or approved person
abusive practices. They request that agents, facilitators, assistants, that meets the educational and
monitoring and enforcement procedures volunteers, etc., are considered as experience requirements of § 96.37(d).
be outlined. Commenters request that supervised providers if they provide We have also discussed this change at
the Department carefully consider adoption services, unless they qualify as section III, subsection B.2 of the
when, how, and by whom investigations an exempted provider in the United preamble.
will be done to ‘‘prevent the abduction, States or perform a service abroad 4. Comment: Other commenters were
sale of, or traffic in children’’ and to qualifying for verification under concerned that the degree requirements
ensure the regulations provide the tools § 96.46(c). An agency’s use of in § 96.37(e) for non-supervisory
such investigators need to fulfill these supervised providers must adhere to the employees providing adoption services
responsibilities. standards in §§ 96.45 and 96.46. which require the application of clinical
Response: Civil monitoring and 2. Comment: Some commenters skills and judgment are too restrictive.
enforcement procedures are outlined in request that the ‘‘appropriate Response: We have modified
detail in subparts J and K of these qualifications’’ in § 96.37(a) be defined § 96.37(e) so that non-supervisory
regulations. Specifically, pursuant to more specifically. employees providing non-exempt
§ 96.72, certain substantiated Response: We do not think a line-by- adoption services that require the
complaints must be reported promptly line description of credentials for every application of clinical skills and
to the Department, and, as appropriate possible job with any agency or person judgment must have at least a bachelor’s
to State licensing authorities, the is necessary. We believe that the degree in any field and prior experience
Attorney General, or other law accrediting process will permit in family and children’s services,
enforcement authorities. We share the accrediting entities to compare adoption, or intercountry adoption.
commenters’ concerns regarding personnel credentials for covered Such employees must be supervised by
conduct in the child’s country of origin; positions with industry norms to an employee of the accredited agency or
these issues are discussed in the ascertain if the standard set forth in approved person who meets the
responses to comments on § 96.46 on § 96.37(a) has been met. educational and experience
foreign providers, and above at section 3. Comment: Most, though not all, requirements in § 96.37(d). This
II, subsection D and section III, commenters agree that a master’s degree adjustment should enable agencies and
in social work (MSW), or a related field, persons to recruit and retain the non-
subsection A.2 of the Preamble.
11. Comment: One commenter would is not a necessary qualification for home supervisory personnel they need to
like the regulations to place increased study preparers, as the proposed rule complete Convention adoptions.
responsibility on U.S. agencies and required at § 96.37(f). Suggestions for a 5. Comment: A commenter is
standard on home study preparers’ concerned that requiring child
persons to work with supervised
education and experience ranged from background study preparers to hold an
providers in Convention countries that
requiring a bachelor’s degree in social MSW or other Master’s degree will
do not participate in child buying.
Response: The regulations in § 96.46 work (or another related field) and hinder Convention adoptions. The
experience with intercountry adoption, commenter believes it will have
clearly provide that any agency or
to requiring an MSW, at least four years difficulty finding child background
person that works with a foreign
experience in intercountry adoption, study preparers overseas that can meet
supervised provider is responsible for
and country-specific training. Others this requirement; in its experience,
requiring that the foreign supervised
requested that the Department consider countries from which children are often
provider adheres to the standard in
a ‘‘grandfather’’ clause in § 96.37(f), like adopted into the United States rarely
§ 96.36(a), which prohibits an agency or
the one in § 96.37(d)(3), to exempt have schools of social work, let alone
person from giving money or other
current practitioners from the master’s Master’s degree programs.
consideration, directly or indirectly, to
degree requirement. Other commenters Response: The questioner appears to
a child’s parent(s), other individual(s),
believe that the proposed regulations be referring to an incoming case, in
or entity as payment for the child or as provided adequate flexibility because which a child background study would
an inducement to release the child. agencies or persons could hire MSWs as be prepared by a foreign supervised
Professional Qualifications and supervisors or other qualified provider or by a foreign provider and
Training for Employees professionals with an educational verified under § 96.46(c)). In such a
background in a related human services case, the standards in § 96.37 would not
Section 96.37—Education and field. apply to the child background study
Experience Requirements for Social Response: We have eliminated the preparer.
Service Personnel master’s degree requirement for home With respect to an employee of a U.S.
1. Comment: A commenter is study preparers employed by agencies agency or person, we have revised
concerned that requiring an agency or and persons, because we understand § 96.37(g) to remove the Master’s degree
person to only use employees to that it may be difficult to retain social requirement for employees that prepare
perform adoption-related social service workers with a master’s degree in some child background studies. This change
functions will create serious problems locations and that requiring professional applies to all employees, whether in the
for small agencies or persons. Small degrees for all home study preparers United States or abroad. Please see the
agencies and persons often hire non- would substantially increase salary response to comment 3 on this section,
employees to conduct home studies costs, especially for small agencies. We and section III, subsection B.2 of the
because they do not have the resources have changed the regulation so it now preamble for further related discussion.
to employ full-time social workers. requires that such employees be: (1) 6. Comment: A commenter
Response: These regulations do not Licensed or authorized to conduct a recommends adding a new standard as
prohibit an agency or person from using home study under the laws of the State § 96.37(h), to guard against agencies or
independent contractors instead of in which they practice; (2) in persons creating subsidiaries to conduct
employees to provide adoption services. compliance with INA requirements for home studies as exempted providers, to
It is critical to understand, however, home study preparers in 8 CFR 204.3(b); evade hiring personnel that meet the
education and experience requirements employees from the elements of the standard by being related to current and
in § 96.37, which the commenter orientation and initial training required emerging adoption practice issues.
appears to believe agencies and persons by § 96.38(a) and (b) if the employee has 5. Comment: A commenter asks if the
will find to be too onerous. The demonstrated experience with required training courses must be
commenter believes that a standard is intercountry adoption, the Convention, approved or accredited and, if so, what
needed to state that when there is and the IAA. We have changed governing body will accredit or approve
overlapping funding, supervision, § 96.38(d) to make clear that current as the courses. Other commenters
personnel, or office space between well as newly hired employees may be recommend that employees should be
‘‘exempt’’ home study providers and exempted from training, so that the required to document training.
non-exempt agencies or persons, that burden and financial impact of training Response: Because of the variety of
the home study providers are not, in current employees is limited, and by training opportunities and variance in
fact, exempt. changing the phrase ‘‘prior experience’’ available training opportunities
Response: We are not adding a new to ‘‘demonstrated experience,’’ to give according to geography, the Department
standard in response to this comment, agencies and persons flexibility when has not mandated that training be
as we believe that the accrediting entity their newly hired and current accredited or approved by any
will have adequate authority under employees already have experience with particular entity, and has added
these regulations to determine whether intercountry adoption and knowledge of documented distance learning courses
or not an agency or person is improperly the Convention and the IAA. as another example of an acceptable
evading compliance with the standards 2. Comment: Commenters requested means to provide training under
in § 96.37 by creating a ‘‘shell’’ that personnel receive balanced training § 96.38(c). When the accrediting entity
exempted provider, and take adverse that is uniform and consistent evaluates whether an agency and person
action as appropriate. The adjustment in throughout the intercountry adoption complies with § 96.38, the agency or
the final rule to remove the Master’s community. Specifically, one person will have to provide some
degree requirement for home study commenter believes that personnel reliable documentation that confirms
preparers employed by an agency or should be trained about both the that employees received (or qualified for
person may also address the positive and negative aspects of exemption from) the required training.
commenter’s concern that agencies or intercountry adoption. Another The accrediting entity’s on-site
persons will be tempted to create commenter recommends that employee evaluators will check both the training
subsidiaries to try to evade hiring training include a course on ethical records and the content of the training
employees that meet the standards in considerations in intercountry adoption. materials used to ensure that they are
§ 96.37. Response: We believe that the
covering the content areas required
7. Comment: A commenter asks that extensive list of topics that must be
under § 96.38. We do not believe,
the Department regulate caseload size. covered under § 96.38 will ensure that
however, that it is necessary in
They believe that a caseload of 30–35 balanced training is provided. We have
added a requirement to § 96.38(a)(5) that regulations to detail what kind of
should be the absolute maximum for
the training include a discussion of documentation must be used.
intercountry adoption.
Response: While we understand the ethical considerations in intercountry 6. Comment: One commenter strongly
concern about large caseloads, the adoption. Section § 96.38(b)(6) also endorses the minimum requirement of
Department is not persuaded that a includes a requirement for agencies and twenty hours of training for an agency’s
specific caseload limit should be a persons to provide training on adoption or person’s employees who provide
standard for accreditation or approval. outcomes and the benefits of permanent adoption-related services, while others
We expect accrediting entities to family placement. think that twenty hours of annual
conduct oversight, pursuant to subpart I, 3. Comment: Commenters request training is excessive. One commenter
to ensure that an agency or person is clarification that, during initial proposes a compromise, suggesting a
providing quality services in substantial employee training, training in ‘‘child, reduction in training hours and/or
compliance with these standards. adolescent, and adult development’’ extending the period to complete the
applies to the development of the training. Another commenter opposed
Section 96.38—Training Requirements the training requirements altogether,
adopted child, and does not require
for Social Service Personnel while still others endorsed the training
training in human development in
1. Comment: A commenter believes general. requirement as written.
that an agency or person must provide Response: We agree and have clarified Response: We are persuaded that
new employees training on the § 96.38(b)(10) accordingly. requiring thirty hours of training over a
Convention, the IAA and Federal 4. Comment: Commenters want to two-year period is reasonable and have
regulations, but that such training is know whether or not the training changed the rule accordingly. Using the
unnecessary for licensed social workers requirement in § 96.38(c) is in addition time frame of two years provides
who will have significant knowledge in to any training that may already be flexibility, and reducing the hours from
this area. required by their State. If so, twenty per year to approximately fifteen
Response: The training requirements commenters state that the regulation per year reduces the time burden and
in § 96.38 apply to all employees of the would require many employees to cost to agencies and persons. At the
agency or person. We believe that perform 30–40 total hours of annual same time, the standard helps to ensure
training of social services personnel training, with the high costs of such that those providing social services
involved in intercountry adoptions is so training passed on to prospective involving clinical skills and judgment
essential that we also effectively impose adoptive parent(s). receive ongoing training on adoption
the § 96.38 training requirements on Response: We have clarified in practice issues.

supervised providers in the United § 96.38(c) that continuing education 7. Comment: A commenter requests
States, pursuant to § 96.45(b)(2). In hours required under State law may clarification regarding whether or not
recognition of the concern expressed count toward the training requirement, staff exempted from initial training are
above, however, § 96.38(d) provides that as long as the training meets the still required to complete the continuing
an agency or person may exempt substantive requirements of the training in § 96.38(c).
Response: Staff exempted from also deleted § 96.39(a)(3), which would 5. Comment: A commenter believes
orientation training in § 96.38(a) and (b) have required disclosures of all entities that data on the number of parents who
are still required to complete the with whom the prospective client could apply to an agency or person to adopt
training requirement of thirty hours in expect to work in the United States and each year is proprietary information and
a two-year period under § 96.38(c). in the child’s country of origin and the requests that we remove § 96.39(b)(2)
Thus, both new hires that become usual costs associated with their requiring such information be disclosed,
incumbents and incumbents must get services. Instead, new § 96.39(a)(2) now if requested, to clients and prospective
thirty hours of training over each two- requires an agency or person to disclose clients.
year period of their employment with this information to prospective client(s), Response: We are not revising the rule
the agency or person. upon initial contact, only for all in response to this request. Section
8. Comment: Commenters request that supervised providers with whom the 203(b)(1)(v) of the IAA mandates that
the Central Authority take a greater role prospective client(s) can expect to work. the ‘‘agency discloses fully its policies
in collating and disseminating best 2. Comment: Commenters request that and practices, the disruption rates of its
practices and translated copies of the Department review several contracts placements for intercountry adoption,
foreign adoption laws and other and establish a list of permitted or and all fees charged by such agency for
adoption related information and prohibited clauses to create contract intercountry adoption.’’ Data on the
establish a resource library as part of its uniformity. number of adoption placements is
duties under Article 7(2)(a) of the Response: We have taken no action on essential to evaluate data on disruption
Convention. this request, as we believe it is beyond rates. Data on the number of parents
Response: We understand the need for the scope of this rule’s establishment of who apply to an agency or person to
best practices guides and pamphlets and accreditation/approval standards. In adopt each year is also important to
the interest in a resource library. The addition, adoption services contracts disclose because, in conjunction with
Central Authority duties of the must still conform to different the data on placements, it allows
Department are, however, outside the individual State laws, which would prospective clients to judge the agency’s
scope of these regulations, which lay pose serious challenges to developing policies and practices with regard to
out the rules regarding accreditation and one uniform model contract. how likely and how quickly it is able to
approval of agencies and persons. 3. Comment: A commenter requests arrange placements.
6. Comment: A commenter believes
Information Disclosure, Fee Practices guidance on how agencies and persons
that, because there is no way to account
and Quality Control Policies and should monitor disruptions and
accurately for all children awaiting
Practices dissolutions, in order to comply with adoption, agencies or persons should
§ 96.39(b)(1). not be required to furnish this number
Section 96.39—Information Disclosure Response: Please see the response to
and Quality Control Practices to prospective adoptive parent(s).
comments on § 96.43, which governs the Response: The Department has
1. Comment: Some commenters think tracking and recording of disruptions changed § 96.39(b)(3) to require that an
that it is unduly burdensome for and, wherever possible, of dissolutions agency or person make available to
agencies and persons to provide a in Convention adoption cases as prospective adoptive client(s) the
sample contract to prospective adoptive required under the IAA for number of children eligible for adoption
parent(s) at initial contact, as required Congressional reporting purposes. In and awaiting an adoptive placement
in § 96.39(a). Other commenters support general, the provisions in § 96.39(b)(1) referral via the agency or person. The
requiring agencies and persons to on maintenance and disclosure of new language clarifies that an agency or
provide a sample copy of their contract. disruptions and dissolution statistics to person is only responsible for disclosing
Response: The adoption services clients mirror § 96.43 and only require the number of children who are
contract contains important information agencies or persons to provide the awaiting an adoptive placement referral
about what an agency or person is information to clients for the prior three via the agency or person.
agreeing to do and what a client is calendar years. 7. Comment: Many commenters
expected to do in a Convention 4. Comment: Commenters suggest that request that § 96.39(d), prohibiting an
adoption. The Department believes that agencies and persons should also agency or person from requiring a client
the information contained in the disclose to prospective adoptive to sign a blanket waiver of liability, be
adoption services contract is critical for parent(s) whether or not any of their omitted. Other commenters request that
prospective clients to consider at the current or former clients have been waivers of liability be prohibited.
beginning of the adoption process as prosecuted for crimes that they Response: The Department has
they compare agencies and persons and committed against their children after deleted the provision prohibiting
determine which services are available the child’s adoption. blanket waivers of liability from
from the different providers. Therefore, Response: While the Department § 96.39(d), as discussed in more detail
the Department is not removing the shares the commenters’ concern about above at section III, subsection B.3 of
requirement that agencies and persons parental abuse of adopted children, we the preamble. Section § 96.39(d) of the
provide a sample contract to prospective have not made this change. The final rule permits an agency or person
clients upon initial contact. information might suggest a deficiency to require a client to sign a waiver of
The Department has taken steps to in the agency or person’s screening of liability as part of the adoption services
reduce the burden on agencies and adoptive parents, but it is post-adoption contract if that waiver complies with
persons of complying with the information that will not be consistently applicable State law. The waiver must
standards in § 96.39(a). The Department available, particularly when agencies do also be limited and specific, and based
has removed from § 96.39(a)(1), as not provide significant post-adoption on risks that have been discussed and
redundant, the proposed standard that services. In addition, there are other explained to the client in the written
the agency or person provide a separate ways in which an accrediting entity can adoption services contract.
explanation of the mutual rights and determine whether proper standards are 8. Comment: As well as requesting
responsibilities of clients and the followed in preparing or approving that waivers be permitted, commenters
agency or person. The Department has home studies. make a variety of requests related to the
specifics of such voluntary waivers on the basis that an agency or person persons is warranted. Nothing in this
including: (1) That ‘‘approved’’ language did not provide requested documents or standard would, however, prohibit the
be included in voluntary and informed information, or did not make employees agency or person from choosing to
risk waivers; (2) that standard risk available. provide additional material upon initial
waiver forms be developed and used; 11. Comment: A commenter suggests contact, or a prospective client from
and/or (3) that country-specific uniform that, because some Convention requesting additional material.
risk waiver forms be mandatory. They countries prohibit the use of the Internet 13. Comment: One commenter
believe that, after acknowledging the to place children for adoption, agencies requests that agencies and persons be
possible risks, prospective adoptive and persons should be required to required to disclose to prospective
parent(s) will choose to proceed despite inform the accrediting entities at the adoptive parent(s) the criteria by which
the known obstacles. time of accreditation or approval if they they determine a child’s suitability for
Response: It is the responsibility of work in such Convention countries, to intercountry adoption.
each agency and person to ensure that ensure compliance with such laws. Response: We have taken no action in
any waiver complies with applicable Response: Each agency or person is response to this request because, under
State law, and the Department does not responsible for complying with the laws Article 4 of the Convention, the
intend to mandate any specific waiver of the Convention country with which competent authorities or public foreign
form or language. It would be it is working, as well as with applicable authorities of the country of origin
impracticable and inconsistent with its State and Federal laws. The Department determine if a child is eligible for
role for the Department to create a risk has modified the language in § 96.39(f) adoption, not the agency or person. In
waiver form for adoptions. To be clear, to clarify that an agency or person may an incoming adoption case, the U.S.
it is the responsibility of each agency use the Internet only to place individual agency or person, in accordance with
and person to disclose risks to be children who are eligible for adoption § 96.52(b)(2), is responsible only for
assumed by the client that are known at when such use is not prohibited by the obtaining from the Central Authority or
the time the adoption services contract State or Federal law or by the laws of other competent authority in the
is signed. If risk waiver forms are used, the child’s country of origin, and then country of origin the child background
the agency or person must take only under the conditions stated in study, proof that the necessary consents
responsibility for the forms in light of paragraphs (1)–(4). The Department is to the child’s adoption have been
the States and Convention countries not requiring, in § 96.39(f), that agencies obtained (per Article 4 of the
involved, and any other relevant factors. and persons inform accrediting entities Convention), and the necessary
9. Comment: Several commenters of the laws of Convention countries, determination that the prospective
express deep concern about the burden however, because we believe that placement is in the child’s best
that the disclosure/waiver provisions accrediting entities already have the interests, and transmitting that
and quality control practices in § 96.39 authority, in their discretion, to request information to the prospective adoptive
will impose on smaller, nonprofit that their accredited agencies and parent(s).
agencies and persons. approved persons provide the
Response: The Department has tried Section 96.40—Fees Policies and
applicable laws of the Convention
to balance the concerns of small Procedures
countries with whom they work so that
agencies with the goal of protecting they can ensure compliance with such 1. Comment: To enable prospective
prospective adoptees, prospective laws. adoptive parent(s) to compare agencies
adoptive parent(s) and birth parents, all 12. Comment: Commenters suggest and persons, many commenters request
within the context of complying with that a new standard be added to require that agencies and persons be required to
the requirements set forth by the that agencies and persons provide provide a detailed breakdown or
Convention and the IAA. The prospective adoptive parent(s) upon schedule of all fees and expenses in a
Department has changed the language of initial contact, a statement that all clear and understandable format,
§ 96.39(d) to permit a client to sign a documents and information referred to including a list of all individuals that
waiver of liability, a revision that in § 96.39 are available to them, and would be involved in the adoption, the
should help reduce the impact on small that, if the organization has 501(c)(3) services they would provide and how
agencies by allowing agencies to status, they may also obtain IRS Forms much they would be paid for services
allocate risks. We did not delete the 990 and 1023. rendered. Several commenters highlight
other information disclosure Response: Section 96.39(a) requires the need to have annotated fees and
requirements in § 96.39, because overall the agency or person to provide expenses for all costs associated with
we believe they are necessary to significant documents and information caring for children and birth parents
implement section 203(b)(1)(A)(v) of the to prospective clients upon initial prior to finalization of the pending
IAA, or otherwise further the purposes contact. We have changed § 96.39(b) to adoption. Other commenters note the
of the IAA and Convention. provide that the agency or person must importance of detailing expenses and
10. Comment: Several commenters inform clients or prospective clients of fees owed to third parties not acting as
raise concerns about how the the additional information available supervised providers. One commenter
accrediting entities and the Department under § 96.39(b) and provide it upon notes that prospective adoptive
will ensure that agencies and persons request. We believe it is sufficient to parent(s) are at times required to
permit document review and site disclose the additional information subsidize adoption referrals and
evaluations when requested. listed in § 96.39(b) only upon request assignments of children that foreign
Response: The Department has from a client or prospective client, in agencies have made through informal
clarified the standard in § 96.39(e) so light of the burden on agencies and agreements, private connections, or
that an agency or person must cooperate persons. We are not adopting the ‘‘inside government relationships.’’ The
with reviews, inspections, and audits by comment as it relates to IRS Forms 990 commenter cites payments called
the accrediting entity or the Department. and 1023, because the rule does not ‘‘foreign fees’’ requested from adoptive
Section 96.25(c) also explicitly provides require that an agency or person obtain parents that generally exceed $10,000.
that accreditation or approval may be 501(c)(3) status, and again, do not The commenter recommends that
denied, or adverse action taken, solely believe the burden on agencies or agencies and persons be required to
break down what is included in this documents and that it discloses whether primary provider, the names of
‘‘foreign fee.’’ Another commenter is the prospective adoptive parent(s) will supervised providers, its practices,
concerned that foreign officials require be expected to pay these costs directly policies and procedures, and its refund
fees for ‘‘facilitating’’ the adoption to third parties (either in the United policies.
process. Another commenter requests States or the child’s Convention Response: The terms to be included in
that the regulations not require a country), or through the agency or an agency’s or person’s adoption
breakdown of expenses but rather list person. This requirement applies services contract are covered by various
fees in particular Convention countries regardless of whether the prospective sections of the regulations. Collectively,
based on average costs there. Numerous adoptive parent(s) will be billed directly these sections require much of the
commenters support the regulations as or through the primary provider. information the commenter believes
written. In sum, we believe the final rule should be included. Please see
Response: Although we have made a provides proper controls on the responses to comments 1 and 9 on
few revisions for clarity, the final rule, potential for improper financial gain—a § 96.39 and to comment 2 on § 96.50.
like the proposed rule, requires agencies primary goal of the Convention— Additionally, § 96.51(b) requires an
and persons to provide a detailed without imposing unreasonable burdens agency or person to inform prospective
breakdown of fees and expenses for on agencies and persons. The adoptive parent(s) in the adoption
adoption services. Section 96.40(b) regulations require a sufficient level of services contract whether or not the
requires an agency or person to disclose detail about fees and expenses to allow agency or person will provide post-
the expected total fees and estimated prospective adoptive parent(s) to have a adoption services.
expenses for the following categories: clear understanding of how an agency or 4. Comment: One commenter requests
• Home study; person uses fees for services to complete that all references to ‘‘expenses’’ be
• Adoption expenses in the United a Convention adoption, thus enabling removed from § 96.40(b)(1)–(7). The
States; them to make informed choices when commenter states that it is very difficult
• Foreign country program expenses; selecting an agency or person to assist to predict the actual expenses of an
• Care of the child; with their Convention adoption. individual intercountry adoption
• Translation and document 2. Comment: A commenter requests because there are so many unknown
expenses; that the Department, as the Central variables. It suggests that fees be based
• Fixed contributions that Authority, record and track fees to on the average cost of an adoption in a
prospective adoptive parent(s) must provide a benchmark so that agencies particular Convention country, rather
make to child protection or child and persons charge similar fees to than expenses. Several other
welfare service programs in the child’s prospective adoptive parent(s), and that commenters are concerned that the
Convention country or in the United it assess the reasonableness of the fees. regulations preclude them from
States; and Response: Section 104 of the IAA providing fee estimates for the overall
• Post-placement and post-adoption requires the Department to submit an cost of the intercountry adoption
reports. annual report to Congress on numerous process.
In response to concerns about the aspects of intercountry adoptions. Response: The Department agrees that
items covered in the category of foreign Pursuant to section 104(b)(7) of the IAA, it can be difficult to know the exact cost
country program expenses, we have one element of the annual report is the of each service that is required to
extracted from that category the costs for range of adoption fees charged in complete an individual intercountry
the care of the child in the country of connection with Convention adoptions adoption. The regulations do not
origin and listed it in § 96.40(b)(4) as a involving immigration to the United preclude an agency or person from
cost that must be separately identified. States and the median of such fees set providing a fee estimate for the total,
We think that identifying this item forth by the country of origin. Thus, the overall cost of the intercountry adoption
separately, and listing examples of the Department will be tracking the general process. The standards do provide,
types of services that may be covered, trends in fees. Specific information on however, that the total fee charged must
will increase transparency in identifying the fees charged by an agency or person include a breakdown, by specified
costs that are generally considered part for Convention adoptions, must be categories, of how the overall fee is
of the foreign country program fee. We provided by the agency or person to the used. The Department has devised a
have also changed § 96.40(b)(3) to accrediting entity pursuant to standard that requires agencies and
include legal services as an example of § 96.43(b)(6). Section 96.40 also requires persons to categorize the fees and
foreign country program expenses. the disclosure of a wide range of fee expenses an agency or person expects to
We have also added a category for information to prospective clients and charge in a uniform format. The fee
otherwise undisclosed fees and clients, which should allow prospective categories an agency or person must use
estimated expenses to § 96.40(c). adoptive parent(s) to compare fees. The are in § 96.40(b) and (c). The rule does
Section 96.40(c) provides for disclosure IAA does not, however, give either to not require an agency or person to
of services provided by third parties, the Department or the accrediting itemize every specific charge for each
and of travel and accommodation entities the authority to regulate the listed category. To reinforce this point,
expenses arranged by the agency or level of fees an agency or person charges the Department is modifying the rule to
person, if not disclosed under to clients, for reasonableness or refer to ‘‘expected total fees’’ and
§ 96.40(b). Third-party fees are fees that otherwise. ‘‘estimated expenses,’’ as appropriate,
the agency or person expects that 3. Comment: A commenter throughout § 96.40.
prospective adoptive parent(s) will have recommends that an agency or person 5. Comment: One commenter requests
to pay directly to a third party, such as must fully disclose to prospective that the rule clearly state that estimated
a country of origin’s Central Authority. adoptive parent(s), in the written contributions should be a fixed dollar
This disclosure standard ensures that an adoption services contract, information amount or range, not a percentage,
agency or person provides in its on adoptive parent eligibility criteria, unless required by the country of origin.
disclosure for fees and estimated mutual rights and responsibilities of Response: The Department has
expenses for payments to Central parents, the role of the agency or person, changed the provision to state that an
Authorities, translations, and the services to be provided by the agency or person must disclose ‘‘any
fixed contribution amount or as § 96.40(e) in the proposed rule) that require agencies and persons to absorb
percentage,’’ because it intends this agencies and persons provide the costs of all unforeseen expenses that
provision to cover circumstances where prospective adoptive parent(s) the may arise in all Convention adoptions.
the law of the country of origin may option to transfer funds overseas to Therefore, the regulations attempt to
require the contribution to be minimize direct cash payments when strike a balance between protecting
determined by a percentage as well as possible. One commenter would like prospective adoptive parent(s) from
circumstances where the contribution is ‘‘minimized’’ to have a clearer large, undisclosed fees and allowing
based on a fixed dollar amount. We definition in this context and would like agencies and persons some flexibility to
recognize that this is not the preference a maximum amount specified for direct handle unforeseen circumstances that
of the commenter, but believe the cash transactions. Another commenter may arise in their Convention adoption
approach taken is consistent with the points out that many countries of origin cases.
IAA, the Convention, and current do not have monetary systems that Thus, the final rule requires that, to
practices. allow direct fund transfers, and that charge fees or expenses that were not
6. Comment: Commenters request some foreign agencies will not accept disclosed in the written adoption
clarification regarding § 96.40 and the electronic transfers. services contract, an agency or person
refund of fees paid for services not Response: The Department has not must obtain the consent of the
rendered. Commenters are concerned modified § 96.40(f) on the transfer of prospective adoptive parent(s) prior to
that agencies or persons may decide to funds. The Department is aware that expending any funds in excess of $1,000
classify all fees as nonrefundable. They many of the fees charged by public (increased from $800 in the proposed
believe that all fees should be refunded authorities in Convention countries—for rule) for which the agency or person
if the adoption is terminated due to example, for passports, birth certificates, will hold the prospective adoptive
agency problems, and if there is no fault adoption certificates, or court parent(s) responsible, or give the
on the part of the prospective adoptive documents—must be paid in cash. For prospective adoptive parent(s) the
parent(s). this reason, the standard does not opportunity to waive the notice and
Response: An agency or person incurs mandate that agencies and persons must consent requirement in advance. The
administrative and other expenses even only use electronic fund transfers for all Department is satisfied that this
if a child is not ultimately placed with transactions or that prospective approach is not inconsistent with the
prospective adoptive parent(s). adoptive parent(s) should not expect to IAA. The amount requiring either notice
Therefore, the Department is not use any cash in the Convention country. and consent or advance waiver was
modifying the rule to prohibit a portion Instead, the regulations require agencies increased from $800 to $1000, to
of fees from being nonrefundable. The and persons to use available methods so provide flexibility, and minimize the
Department believes that § 96.40(a)’s that the need for direct cash transactions burden of seeking consents.
requirement that agencies and persons by prospective adoptive parent(s) is 10. Comment: Commenters feel that
disclose up front conditions under minimized. It would not be practicable agencies and persons should provide
which their fees or expenses may be to set a maximum amount for such receipts for domestic fees and expenses
refundable or nonrefundable will allow transactions, given the variances only, and should not be expected to
prospective adoptive parent(s) to make between Convention countries. provide receipts for fees and expenses
informed choices about which agency or 9. Comment: A commenter is paid in the Convention country as
person they want to assist them with a concerned about the standard in proposed in § 96.40(f)(3) of the proposed
Convention adoption. § 96.40(g) (which appeared as § 96.40(f) rule, which is now § 96.40(g)(3). A
7. Comment: A commenter thinks that in the proposed rule), allowing agencies commenter recommends that written
requiring the disclosure of special or persons to expend up to $800 in receipts should be provided for fees and
service fees creates an obligation for an additional, undisclosed fees and expenses collected directly by the
agency or person to specifically identify expenses, without specific consent of agency or person. One commenter
if the fee is used to support other the prospective adoptive parent(s). As supports the regulation requiring
purposes of the organization, such as well, the commenter suggests that the agencies and persons to provide receipts
cultural programs or scholarships. The standard should restrict the number of so that all funds can be accounted for.
commenter believes that, while it is times an agency or person can obtain The commenter is concerned that
reasonable to disclose this information, consent to expend funds in excess of agencies and persons will decide to
it is not practical for an agency or $800 on unforeseen additional fees and have money paid directly to hired
person to account for the use of such expenses, even if the prospective contractors to avoid giving receipts.
funds on a case-by-case basis. adoptive parent(s) have waived the Response: The final rule requires that
Response: The Department believes notice and consent requirement for such agencies and persons provide receipts
that it is important to disclose the expenditures in advance. Two for unforeseen Convention country fees
practice of using a portion of fees to commenters suggest that the standard and expenses, because otherwise
fund special services such as cultural may be inconsistent with the IAA agencies and persons would not have to
programs for adoptees and their requirement that agencies and persons account at all to their clients for these
families, but recognizes that it may be disclose fully all fees charged. They expenses. The Department has changed
impractical to require an agency or believe the standard should require all the standard in § 96.40(g)(3), however,
person to account for the use of such fees to be disclosed in advance, with no so that an agency or person is only
funds on an individual basis. last minute fee increases. required to provide written receipts for
Accordingly, we have changed the Response: The Department shares the unforeseen additional fees and expenses
standard at § 96.40(e) (which appeared commenters concerns about charging incurred in the Convention country that
as § 96.40(d) in the proposed rule) to large, last minute fees that were not were ‘‘paid directly by the agency or
require, where applicable, ‘‘a general disclosed to the clients in advance. person’’ in the Convention country. As
description of the programs supported Nevertheless, it is not unusual in an discussed previously, the Department
by such funds.’’ intercountry adoption for unexpected has also added new § 96.40(c)(1), which
8. Comment: Commenters support the expenses to arise in the country of requires agencies and persons to
standard at § 96.40(f) (which appeared origin. It would be unreasonable to disclose fees and estimated expenses for
services provided by a third party that Response: The Department has not compliance with the Convention, the
will be paid directly by the prospective changed the language from the proposed IAA, and/or the regulations
adoptive parent(s). The Department also regulation as requested. Section 96.41(b) implementing the IAA. We have also
notes that §§ 96.45(b)(6) and 96.46(b)(8) makes clear that only complaints that changed § 96.41 to make clear that the
require that a primary provider require raise an issue of compliance by the obligations set forth in this standard
that its supervised providers provide agency or person with the Convention, (with respect to the processing,
clients with an itemized bill of all fees the IAA, or the regulations recording and reporting of complaints)
and expenses to be paid, if the implementing the IAA are within the relate only to those complaints that are
supervised providers bill the clients scope of the standard. This broader received pursuant to § 96.41(b).
directly. scope encompassing the Convention Therefore, we do not believe it is
11. Comment: Commenters request and these regulations, as well as the necessary to add a definition of
that the word ‘‘prospective’’ be removed IAA, is appropriate. The Department has ‘‘complaint’’ to the rule.
from § 96.40(g) (which appeared as changed § 96.41(b) so that the 4. Comment: Some commenters are
§ 96.40(f) in the proposed rule). description of the type of complaints an concerned that agencies might disregard
Commenters believe that adoptive agency or person must accept mirrors § 96.41’s standard forbidding retaliatory
parent(s) are no longer prospective at the description of the type of complaints action against those who file
this stage in the adoption process. that the accrediting entities will process, complaints. Several commenters
Others request that the regulations in § 96.68. See also the response to recommend that the Department add
remain as written. comment 1 in § 96.69. provisions for severe penalties to be
Response: Section 96.40(g) addresses, In addition, § 96.41 has also been assessed against any agency violating
in part, unforeseen fees that may occur revised to clarify that references to the prohibition on retaliation. Other
before an adoption is finalized, either in complaints in other paragraphs of commenters think that the regulation
the Convention country or in the United § 96.41 refer back to complaints filed forbidding retaliatory action is adequate
States. Therefore, the Department pursuant to § 96.41(b). as written.
believes that the use of the phrase 2. Comment: Several commenters Response: We concur with those
‘‘prospective’’ adoptive parent(s) is would like ‘‘post-adoptive parent’’ commenters who find § 96.41(e)
appropriate. added to the list of those qualified to adequate. If an agency or person
12. Comment: A commenter thinks lodge a complaint. They believe that disregards the prohibition against
that § 96.40(g) of the proposed rule, otherwise the provision could exclude retaliatory action, complainants have
which required an accounting of ‘‘fees the many parents who waited until their the option of filing a complaint with the
and expenses incurred within thirty adoptions were complete before making Complaint Registry, for referral of the
days of completion of delivery of the complaints to the appropriate alleged misconduct to the accrediting
services’’ requires agencies and persons authorities. entity. The accrediting entity may take
to reiterate detailed information about Response: We have changed § 96.41(b) adverse action as necessary. To further
fees that has already been provided. The to refer also to adoptive parents. add to the protection of individuals who
3. Comment: Several commenters complain against an agency or person,
commenter believes it is unclear
would like the regulations to clarify however, we have made a minor change
whether this rule is asking an agency or
what constitutes a complaint, so that the to § 96.41(e) so that it explicitly
person to substantiate the fees that were
number of frivolous complaints will be prohibits an agency or person from
charged for services rendered. It also limited. They recommend that the term
thinks that § 96.40(g) of the proposed retaliating against an individual for
‘‘complaint’’ be defined. Several providing information to an accrediting
rule, requiring an accounting, should be commenters suggest that a complaint be
removed or that the deadline should be entity on the agency’s or person’s
defined as a written document, which is performance. See also the response to
extended from thirty to sixty days. signed, and which addresses a specific
Response: The Department agrees that comment 3 in § 96.69.
aspect of a service that is under the 5. Comment: Two commenters are
requiring an accounting is redundant control of the agency or person and concerned that requiring agencies and
and, therefore, has deleted § 96.40(g) of governed by the regulations. One persons to summarize complaints and
the proposed rule from the final rule. In commenter further requests the section corrective actions on a quarterly basis
further response to this comment, we be amended to reflect that anonymous places too heavy a burden on agencies.
have extended the time frame for complaints may not be filed. Another They recommend the Department
agencies and persons to refund fees, commenter would like to see the eliminate that requirement. One of the
which appears in § 96.40(h), from thirty regulations protect the confidentiality of commenters believes semi-annual or
days to sixty days to minimize the those who make complaints. annual reporting would be more
burden arising from this standard. Response: We understand that appropriate.
Responding to Complaints and Records agencies and persons are concerned Response: Because of its value as an
and Reports Management about being held accountable for oversight tool, we are keeping the
problems that are not within their requirement that agencies and persons
Section 96.41—Procedures for control. Section 96.41(b) details the must provide a summary of complaints
Responding to Complaints and components of complaints that an to the accrediting entity and the
Improving Service Delivery agency or person will be held Department, but we have amended the
1. Comment: Several commenters are accountable for addressing, stating that regulation to require semi-annual
concerned that the regulations leave such complaints must be dated and reporting rather than quarterly
agencies and persons vulnerable to signed by a birthparent, a prospective reporting.
complaints about activities outside the adoptive parent, an adoptive parent, or 6. Comment: Many commenters
scope of their work. To safeguard an adoptee. Furthermore, the complaint suggest that individuals should be able
agencies and persons from such must refer to services or activities of the to file complaints directly with the
complaints, one commenter suggests agency or person (including its use of a Complaint Registry, not just with the
this section be changed to require that supervised provider) that the adoption agency or person. Other
the complaint be related to the IAA. complainant believes raise an issue of commenters believe complainants
should try to resolve issues through the 9. Comment: One commenter would Response: Please see the response to
complaint process of an agency or like the regulations to include a comment 5 on § 96.36, above, which
person before filing with the Complaint provision requiring agencies to educate addresses this comment.
Registry. prospective adoptive parent(s) about the
Response: With the limited exception Section 96.42—Retention, Preservation,
complaint process. Another commenter and Disclosure of Adoption Records
of complaints brought by individuals suggests an independent entity should
who are not party to the specific be created to educate adoption clients 1. Comment: Some commenters
Convention case, we have not accepted and monitor complaint trends. believe that § 96.42(a) should specify a
the recommendation to allow uniform Federal time frame for the
Response: The regulation requires retention of adoption records. Several
complainants to file complaints directly
agencies and persons to provide their commenters object to the use of
with the Complaint Registry. An
clients information regarding the individual State laws to govern the
individual who is a party to a specific
complaint process, including contact retention of adoption records. Several
Convention adoption case must lodge
information for the Complaint Registry, other commenters request that adoption
any complaint relating to that case first
at the time the adoption contract is records be retained permanently
with the agency or person providing
signed. Also, we have added to because future children and relatives—
adoption services, if a U.S. provider,
§ 96.41(b) a requirement that the agency in addition to the adoptee—have an
and the primary provider, if different, in
or person advise complainants of interest in the adoption records. Other
order to give the agency or person an
procedures available to them if they are commenters suggest a minimum
opportunity to resolve the issue. For a
discussion of the complaint process, dissatisfied with the agency’s or retention period range from 75 to 100
please see the responses to comments 2, person’s response to their complaint years.
3, and 4 in § 96.69. (which may include any internal Response: In the proposed rule, the
7. Comment: One commenter wonders appeals process, or information on filing Department deferred entirely to State
if there should be a deadline after an complaints with the Complaint law in the standard for retention of
adoption has taken place for adoptive Registry). We feel that the standard adoption records. Section 401(a) of the
parents to file a complaint about requires adequate notice to prospective IAA focuses on the preservation of
adoption services. adoptive parent(s) about complaint Convention records. (See the final rule
Response: Although we want to procedures. We are hopeful that for part 98 of Title 22 of the CFR
encourage complainants to address information about the Complaint published today in the Federal
issues in a timely manner, we are Registry will be disseminated widely, Register.) Convention records are those
reluctant to place an arbitrary time limit through various channels (including the records in custody of DHS and the
on complaints in these regulations, Department’s Web site, accrediting Department. The Department wants to
which regulate the accreditation and entities’ Web sites, advocacy groups, stress that adoption records are different
approval of agencies and persons. We adoption support groups, and adoption from Convention records. Adoption
have not changed the proposed rule in Web sites) so that the notice provided records are records that are received or
response to this request. by the agency or person will reinforce maintained by agencies, persons, or
8. Comment: Several commenters information already publicly available domestic public authorities. The IAA is
would like to ensure the complaint to prospective adoptive parent(s). silent on whether or not there should be
process is transparent to the public. One 10. Comment: A commenter an accreditation standard on retention
commenter says that an agency or recommends that the Department add a of adoption records.
person should be required to post on its standard providing that ‘‘where the We understand the concerns
website the periodic reports agency or person is acting as the regarding deference to State laws, as
summarizing complaints that they send primary provider, the procedures State retention requirements on
to the accrediting entity. One specified in § 96.41(a) through (h) preservation of records may vary.
commenter requests that the regulations [concerning responding to complaints Section 96.42(a) of the final rule,
include a provision stating that and improving services delivery] nevertheless, continues to set a standard
adoption agencies and persons must include any and all complaint(s) that requires that agencies and persons
disclose, pre-referral, any complaints relating to both the primary provider preserve adoption records for as long as
that have been directed against the and to any and all supervised State law requires. Consistency with
agency or person. provider(s).’’ State law enhances agencies’ and
Response: The Department believes persons’ ability to comply with these
that the rule’s provisions on complaint Response: We find the change regulations and minimizes the burden of
resolution provide adequate unnecessary. A complaint that a storing records for periods beyond what
transparency with respect to primary provider using supervised is already required under State law.
complaints, and is not making any providers had not ensured that adoption 2. Comment: Some commenters
change in response to these comments. services were provided consistent with would like to see a Federal agency, not
If a complainant is dissatisfied with the the IAA and these regulations is agencies or persons, retain adoption
resolution of a complaint by an agency included within the types of complaints records because agencies or persons
or person, the complainant may file a that may be filed with the agency or may cease operations and records may
complaint with the relevant accrediting person under § 96.41(b), or with the be lost. Some commenters request that
entity through the Complaint Registry, accrediting entity via the Complaint adoption records in the custody of
as described in subpart J. Once the Registry pursuant to subpart J. In agencies and persons be accessible
Convention is in force, the information addition, § 96.45(b)(2) requires primary through FOIA. Other commenters
dissemination requirements of subpart providers to ensure that their domestic suggest that adoption records should be
M will require disclosure to the public supervised providers comply with retained in a national archive. Another
of information related to substantiated § 96.41(b) through (e). commenter believes that adoption
complaints and thereby keep the public 11. Comment: One commenter records for adoptions finalized in a
adequately informed about complaints requests that birth parents be made Convention country should be
against agencies and persons. aware of how to pursue complaints. accessible through FOIA.
Response: We are not making any 6. Comment: One commenter requests on access to adoption records or to
change to § 96.42 in response to these the establishment of an international block access to adoption records by
comments. Section 401(c) of the IAA registry that requires both the adoptee birth parents, adoptees, or adoptive
mandates that applicable State law and birth parents to consent to release parents otherwise permitted by State
continue to govern disclosure, access, of records before adoption records may law.
and penalties for unlawful disclosure of be disclosed. To clarify and avoid confusion,
adoption records. By making the Response: We decline to make any however, we have deleted proposed
Department or some other Federal change in response to this comment, §§ 96.42(c) and (d) from the final rule,
agency custodian of adoption records, which is beyond the scope of these with the exception of the requirement
we would be federalizing a function that accreditation/approval regulations. that the agency or person ‘‘safeguards
Congress determined in section 401 of Section 401(c) of the IAA makes it clear sensitive information,’’ which is a
the IAA to be better regulated at the that access to adoption records in the standard required by IAA section
State level. In addition, attempting to United States will be governed by 203(b)(1)(D)(iii). This standard has been
establish a Federal records depository applicable State law. relocated to § 96.42(c) of the final rule
for non-Federal records would raise a 7. Comment: Several commenters (§ 96.42(e) of the proposed rule).
host of legal, management, and funding express concern about the access that Agencies and persons must still comply
issues. Finally, the Department does not adopted persons and their families will with applicable State law on access to
have the authority to require countries have to their adoption records. They adoption records. Consistent with this,
of origin to retain adoption records. The would like the regulations to make § 96.42(a) clearly defers to applicable
laws of the country of origin govern adoption records available to adopted State law as the basis for the standard
access to and preservation of records persons and their families at minimal or for retaining and archiving adoption
that are maintained by its public foreign no cost. One commenter adds that records.
authorities. agencies and persons should be required
to respond to record requests in a timely Section 96.43—Case Tracking, Data
3. Comment: A commenter requests Management, and Reporting
that the proposed regulations specify, fashion. It requests that the regulations
clarify which information can be given 1. Comment: A commenter agrees
with a strict definition, which adoption
to the adopted person or family, when with the principle of requiring reports
records must be retained.
it can be given, and how it must be by primary providers. The commenter
Response: The definition of adoption also believes that requiring annual
requested. It further requests regulations
record is found in § 96.2. It includes, but reports would be too costly and time
regarding access to records generated in
is not limited to, ‘‘photographs, videos, consuming. It requests that these reports
countries of origin.
correspondence, personal effects, Response: We are making no change be submitted every two years instead.
medical and social information and any in response to these comments. Under Response: Section 104 of the IAA
other information about the child’’ section 401(c) of the IAA, access to requires the Department to submit an
received or maintained by agencies and adoption records is governed by State annual detailed report including the
persons or public domestic authorities. law, including State law on costs and data outlined in § 96.43 of this
The definition includes a range of types timing of access to adoption records. regulation. The information collected by
of materials to make it clear that Laws governing specific issues related the primary providers, and provided to
agencies and persons must retain all to access to adoption records vary from the accrediting entity or Department, is
information about the child that comes State to State. Access to Convention used to fulfill the Department’s
into their custody. We do not believe records will be governed by applicable responsibilities under the IAA.
that the definition of an ‘‘adoption Federal law, including the FOIA and the Therefore we have not changed the
record’’ must be changed. Privacy Act. requirement for agencies and persons to
4. Comment: One commenter requests 8. Comment: Several commenters report on the elements in § 96.43 on an
that the regulations outline strict were confused about whether annual basis.
enforceable regulations on the physical §§ 96.42(c) and (d) of the proposed rule, 2. Comment: One commenter suggests
maintenance, storage, and retention of regarding disclosure of information and that agencies and persons be required to
adoption records based on established protection of privacy, were meant to report on the ethnicity of the child and
and professional archival standards. preempt State laws on disclosure. Some birth parents for cases involving
Response: We have changed § 96.42(a) commenters worried that these sections children immigrating to the U.S. and
to state that the agency or person must were creating a Federal law on access to those emigrating from the U.S.
retain or archive adoption records in a information about adoptees’ and birth Response: Section 104 of the IAA lists
safe, secure, and retrievable manner. parents’ identities. Of those the required data to be collected and
5. Comment: Several commenters commenters, several were concerned reported by the Department regarding
request that the regulations clarify that that § 96.42(c) did not adequately Convention (and in some cases non-
the State law that applies to adoption protect the privacy of adoptees, birth Convention) adoptions. The language of
records is the law of the State in which parents, and prospective adoptive § 96.43 of these regulations generally
the agency or person is physically parent(s). Others were concerned that mirrors the data requirements in the
located. § 96.42(d) would inappropriately block IAA. The IAA has no requirement to
Response: We have not made this access to adoption records. report the ethnicity of the child or the
change because, in providing that Response: Section 96.42(c) in the birth parents, and we are unconvinced
‘‘applicable State law’’ will govern proposed rule was not meant to preempt of the need for such a requirement. In
disclosure of, access to, and penalties State laws regarding disclosure, privacy the interests of reducing reporting
for unlawful disclosure of adoption protection, or access to adoption records burdens on agencies and persons, we
records, IAA section 401(c) is silent on or other information. The proposed rule decline to insert such a requirement into
which State’s law is ‘‘applicable.’’ State standard specifically referenced these regulations.
conflicts-of-laws rules thus would applicable State law. Likewise, 3. Comment: A commenter suggests
determine which State law is § 96.42(d) in the proposed rule was not that, for every child emigrating from the
applicable, if the question should arise. intended to change applicable State law United States, an agency or person be
required to provide a statement that the accrediting entity if directors, managers, commenters assume that the liability
placement is being made in compliance or employees previously worked with provisions impose a strict liability
with the Indian Child Welfare Act and other providers of adoption services. In scheme and exceed the statutory
either that the child is not a Native addition, we have added to § 96.35(c)(5) authority provided in the IAA. There are
American or that the tribe has been a standard that agencies and persons some commenters who support the
notified and permission for an out-of- must report if their individual officers, liability provisions in the regulations,
country placement has been received. directors, or employees are known to however. These commenters request
Response: There is already a have been or currently are carrying out that the section remain unchanged.
requirement that agencies and persons activities that are inconsistent with the Some commenters would like primary
comply with all applicable requirements principles of the Convention. It is, providers to be required to treat entities
of the Indian Child Welfare Act, in therefore, unnecessary to have a similar accredited by Convention countries as
§ 96.54 of these regulations. The reporting requirement in § 96.43. supervised providers.
accrediting entity will determine the Response: The Department has
documentation necessary to evaluate Service Planning and Delivery addressed, at section III, subsection B.4
compliance with this standard. We have Section 96.44—Acting as Primary of the preamble, above, these comments
not specified that compliance with this Provider and its decision to remove the
particular standard will be established provisions of the proposed rule that
by a written statement; as with all of the Section 96.45—Using Supervised required the primary provider to retain
standards, the accrediting entity will Providers in the United States legal responsibility for the adoption
decide what documentation and Section 96.46—Using Providers in services provided by, and assume
information is necessary to measure Convention Countries liability for, its supervised providers.
compliance. Consistent with that discussion, the
4. Comment: A commenter believes 1. Comment: Most commenters have
Department has deleted proposed rule
that information about disruptions and strong reactions to the regulations
provisions §§ 96.45(b)(8), 96.45(c),
dissolutions should be tracked governing the responsibilities of
96.45(d), 96.46(b)(9), 96.46(c), and
regardless of whether a child is primary providers. Many commenters
96.46(d). The regulations as now revised
subsequently placed with another believe that requiring primary providers
are in no way intended to allocate the
family in another country or in the to assume responsibility for the actions
risk of tort liability between a primary
United States. of supervised providers—both U.S. and provider and a supervised provider.
Response: We are making no change foreign—would prove to be unworkable. Instead, they focus on the primary
in response to this comment. Section On the other hand, other commenters provider’s responsibility, in the
96.43 already requires an agency or believe that making primary providers accreditation/approval context, for the
person to provide information on liable for the actions of supervised actions of its supervised providers to the
disrupted adoptions regardless of providers, if those actions were extent that such actions reveal the
whether a child is placed with another negligent, is essential to ensuring the primary provider’s non-compliance
family. Agencies and persons are protection of children, birth parents, with a specific standard under §§ 96.45
required to provide the same and adoptive parents. Numerous or 96.46 (a) or (b).
information on dissolved adoptions commenters believe that the liability As explained above, at section III,
wherever possible. The Department has provisions in §§ 96.45 and 96.46 of the subsection B.4 of the preamble,
qualified the requirements for tracking proposed rule should be stricken. Many although we have removed the
information on dissolved adoptions of the commenters support the provisions requiring primary providers
with the phrase ‘‘wherever possible’’ regulations as a framework for working to assume legal responsibility for the
because we recognize that agencies and with supervised providers, absent the actions of their supervised providers,
persons may not be able easily to get liability provisions. Commenters state in we have expanded the types of
information about what happens to a particular that assigning liability to a providers that primary providers must
child after an adoption is completed. single primary provider places an supervise. The Department has revised
5. Comment: A commenter believes a unmanageable financial burden on § 96.14 to require a U.S. accredited
child’s records should include the name agencies and persons who serve as agency or approved person acting as a
of the individual(s) who performed the primary providers. Other commenters primary provider to treat other U.S.
home study for the prospective adoptive believe that small agencies and social accredited agencies and approved
parent(s). workers who would serve as supervised persons providing services on the case
Response: The IAA does not require providers will be forced out of practice in the United States as supervised
the name of the individual who because primary providers will be providers (§ 96.14(b)(1)), and to treat
performed the home study to be unwilling to accept legal responsibility foreign entities accredited by a
included in a child’s records, and the for their work. Convention country as supervised
Department does not believe it is Several commenters recommend that, providers (§ 96.14(c)(2)) unless they are
necessary to impose such a rule. if the final regulations contain liability performing a service qualifying for
6. Comment: Two commenters believe provisions, the Department should limit verification under § 96.46(c). The
agencies and persons should report if liability through caps on damages, Department believes that holding
they have ever operated under a limits on attorney fees, the imposition of primary providers responsible through
different name or if their principals a statute of limitations in Convention the accreditation/approval process for
have ever worked with different cases, and a realistic standard of proof accredited providers assisting with a
agencies or persons. for agencies in Convention cases. Other case will provide an incentive to the
Response: Agencies and persons are commenters recommend that the primary partner to choose any provider
required to provide information about regulations provide for liability partner carefully, offsetting the deletion
operations under different names exemptions for primary providers who of the requirement allocating legal
pursuant to §§ 96.32 and 96.35 of these can demonstrate ‘‘due diligence’’ in the responsibility for the conduct of
regulations. Section 96.32(e) requires selection and oversight of their supervised providers to the primary
agencies and persons to disclose to the supervised providers. Many provider.
In addition, the Department has Response: As explained above, the Response: The Department does not
added language to § 96.46(a)(5) that Department has removed the intend the use of the IAA term
requires a primary provider to ensure requirements that primary providers ‘‘supervised’’ to determine the treatment
that a foreign supervised provider is assume legal responsibility for the of any individual or entity under the
accredited in the Convention country in actions of the supervised providers U.S. Internal Revenue Code. Supervised
which it operates, if accreditation is operating under their supervision. providers may be independent
required by the laws of that Convention Therefore, the regulations’ contractors. For Convention and IAA
country to perform the adoption indemnification standards are no longer purposes only, a supervised provider is
services the foreign supervised provider necessary, and the Department has an agency or person that is providing
is providing. deleted §§ 96.45(d) and 96.46(d). adoption services under the supervision
As explained in section III, subsection 3. Comment: Several commenters and responsibility of an accredited
A above, § 96.46(c) now recognizes that point out that prospective adoptive agency, temporarily accredited agency,
contemporaneous supervision by a U.S. parent(s) decide which agencies and or approved person that is acting as the
accredited agency or approved person persons to use for certain adoption primary provider in the Convention
will generally not be possible with services. For instance, prospective case. The term ‘‘supervised provider’’ is
respect to a limited number of services adoptive families often complete a home too deeply embedded in these
performed in Convention countries— study before they even approach an regulations to warrant devising a
obtaining consents and preparing child agency. Commenters request that the different term to avoid a misperception
background studies in incoming cases supervision provisions be modified to that the term has any implications for
(child immigrating to the United States), reflect such situations. tax purposes.
and preparing home studies in outgoing Response: The Department 5. Comment: A commenter
cases (child emigrating from the United understands the concern about recommends that the regulations require
States)—and accordingly allows the U.S. providers selected by prospective primary providers to be directly
primary provider the option of verifying adoptive parent(s). Under this rule, responsible for all fee issues.
after the fact that such services were Response: The Department
however, an accredited agency,
obtained in accordance with applicable appreciates the concern that some
temporarily accredited agency, or
foreign law and the Convention. At a supervised providers will charge
approved person will have to be
minimum, such steps will require additional and undisclosed fees to
identified and act as the primary
review of the relevant reports and prospective adoptive parent(s) when
provider in each Convention case. This
documentation to ascertain that working directly with the prospective
primary provider, as identified under
applicable requirements have been adoptive parent(s). The regulations, as
§ 96.14, is responsible for the provision
satisfied. Section 96.44 has also been written, should help to control this
of adoption services in the case as
revised to conform to this change in problem, because the standards in both
provided in § 96.44. Providers who do § 96.45 and § 96.46 impose specific
§ 96.46.
Overall, the modifications that the not comply with this framework will requirements for fee-related provisions
Department has made to the regulations not be able to provide services to that must appear in the written
do not change the basic framework that prospective adoptive parent(s). agreement between the primary and
was set up in the proposed rule. With respect to prospective adoptive supervised provider. Section
Agencies and persons acting as primary parent(s) in the United States who have 96.46(b)(8), for example, requires that
providers will continue to be a home study completed before the written agreement between the
responsible for monitoring the choosing a primary provider, if the primary provider and the foreign
compliance of supervised providers and home study was prepared by an supervised provider specify that, if the
the accreditation and approval process exempted provider, the primary foreign supervised provider is billing
will serve as a check on this provider will be required to ensure that the client(s) directly for their services, it
responsibility. Primary providers will the home study is approved consistent must give the client(s) an itemized bill
not, however, be required by these with § 96.47(c). The same is true with of all fees and expenses to be paid, with
regulations to assume legal regard to exempted providers a written explanation of how and when
responsibility for the acts of their performing child background studies. such fees and expenses will be refunded
supervised providers. The Department With respect to child background and if the service is not completed, and must
believes this structure will promote home studies prepared in Convention make any refunds within sixty days of
compliance with the Convention, the countries, §§ 96.44 and 96.46(c) will the completion of delivery of services.
IAA, and these regulations, without allow the U.S. primary provider to 6. Comment: Several commenters
making it prohibitively difficult for verify the performance of the service, as were concerned about the practices of
accredited agencies and approved discussed above at section III, some foreign providers who work with
persons to work with other agencies and subsection A, and in response to birth parents in the country of origin.
persons in the United States or with comment one above. Response: Protecting the rights of
providers in Convention countries. 4. Comment: Two commenters point birth parents to consent to an adoption
2. Comment: Several commenters out that the term ‘‘supervised’’ has is an important principle of the
maintain that the indemnification ramifications for agencies and persons Convention. The primary responsibility
provisions outlined in §§ 96.45(d) and because of the distinctions made by the for ensuring that consents have been
96.46(d) do little to protect the primary Internal Revenue Code between obtained in compliance with the
provider. Some commenters state that employees and independent contractors. Convention is on the country of origin,
the primary provider could be out of The commenters request that this however, not on the receiving country.
business before it has the chance to seek differentiation be reflected in the final The standards in § 96.46 require
indemnification against the supervised regulations. The commenters also primary providers to supervise the
providers. Commenters also contend request that the regulations clarify that actions of their foreign supervised
that many supervised providers would they do not prevent an agency or person providers, including by requiring the
not have the resources to fulfill the from employing an independent foreign supervised provider to adhere to
indemnification obligation. contractor. the standard in § 96.36(a) prohibiting
child buying, or, if the consents were origin. A commenter believes that 4. Comment: One commenter believes
not obtained by a foreign supervised deliberate omissions of unfavorable that the Interstate Compact on the
provider, by verifying that consents information on a home study should be Placement of Children (ICPC) needs to
obtained by any other foreign non- grounds for denial of accreditation or be addressed in the regulations
governmental provider have been approval. concerning home studies.
obtained in accordance with the Response: Although we understand Response: We have chosen not to add
Convention and applicable foreign law. the concerns of the commenters compliance with the ICPC as a specific
We do not have authority, however, to regarding the content of home studies, standard. To the extent ICPC
regulate foreign providers directly, and we do not have the authority to make requirements relevant to intercountry
there are limits to how much we can the suggested changes in these adoptions are incorporated into
control the consent process abroad regulations. The Department has applicable State law, agencies and
consistent with the framework of the authority over the accreditation and persons will be required to comply with
Convention. We believe the approach approval of agencies and persons. DHS them.
taken in the regulations strikes the retains the authority to determine the Section 96.48—Preparation and
correct balance. content of a home study for Convention Training of Prospective Adoptive
and non-Convention cases. We cannot Parent(s) in Incoming Cases
Standards for Cases in Which a Child
remove requirements, such as the
Is Immigrating to the United States 1. Comment: One commenter states
required disclosures of misdemeanors,
(Incoming Cases) that the regulations should clarify that
from DHS regulations through these
Section 96.47—Preparation of Home only agencies or persons—not
regulations.
Studies in Incoming Cases prospective adoptive families—have the
These accreditation and approval
authority to decide whether prospective
1. Comment: One commenter requests regulations do not address the length of
adoptive parent(s) should be available
that the regulations permit only time that a home study is valid. The for the exemption from training outlined
accredited agencies or approved persons length of time that a home study in § 96.48(g). Another commenter
to conduct home studies. remains valid is set by DHS. Therefore, supports the ability of parents who have
Response: Section 201(b) of the IAA we reference DHS’ regulations, 8 CFR adopted before to ‘‘opt-out’’ of the
specifically allows non-accredited 204.3(e), which lay out the current training. Other commenters believe that
agencies and non-approved persons, requirements for a home study in families should not be exempted from
known as exempted providers, to intercountry adoptions. The home study all the training.
conduct home studies, as well as child requirements for intercountry adoptions Response: We have changed the
background studies, in the United can be found on the Web site of DHS’s language of § 96.48(g) to clarify that it is
States, without being supervised. U.S. Citizen and Immigration Services, the agency or person that determines
Exempted providers may prepare home at http://www.uscis.gov. whether prospective adoptive families
studies and child background studies As for the issue of preparing two can be exempted from the training. We
without being accredited, approved, or home studies—one for the DHS process expect agencies and persons to comply
supervised as long as they are not and one for the country of origin—under with § 96.48(g) and to evaluate
currently providing, and have not § 96.47(d) the preparation of two prospective adoptive parent(s) to assess
previously provided, any non-exempt different home studies is not permitted. whether they have received adequate
adoption services in the case. Home The United States will base its prior training or have prior experience
studies and child background studies Convention Article 5(a) determination as parent(s) of children adopted from
conducted by exempted providers must about the suitability of the prospective abroad.
be reviewed and approved by an adoptive parent(s) in reliance on a home 2. Comment: Many commenters
accredited agency or temporarily study. We believe it would be express support for mandatory training
accredited agency, however. Because inappropriate for the United States to for prospective adoptive parent(s),
the IAA provides clear guidance on this support a process whereby the receiving including the variety of training
issue, and our regulations are consistent country would make that determination methods that are provided for by the
with the IAA, no change to the based upon one home study and then regulations. One commenter
regulation is appropriate. have the country of origin’s decision recommends a minimum of twenty
2. Comment: One commenter would based upon a different home study. hours of pre-adoptive training for
like the regulations to eliminate the 3. Comment: A commenter is adoptive families. Other commenters
need for prospective adoptive parent(s) concerned about the disclosure of believe pre-adoption training for
to disclose misdemeanors that are over criminal history information to prospective adoptive families should be
ten years old and that do not involve individuals not currently authorized voluntary. They are concerned about
abuse. Another commenter requests that under State law to conduct criminal any additional costs or burdens to
the regulations state the length of time background checks for home studies. It prospective adoptive parent(s). Some
for which a home study will be valid as requests clarification that only commenters recommend that training of
well as describe the renewal process for individuals authorized under State law prospective adoptive families should be
a home study. One commenter can conduct criminal history interactive and not rely solely on
recommends that the regulations allow background reviews. videos, computers, or other distance
any home study preparer to prepare a Response: Sections 96.47(b) and learning methods. Another commenter
second home study for the competent 96.47(c)(1) require that home studies suggests that the Department require
authority in the child’s country of origin must be performed in accordance with prospective adoptive parent(s) to
that is different from the home study 8 CFR 204.3(e) and applicable State law. participate in ‘‘adoption playgroups,’’ so
sent to DHS. The commenter notes that Therefore, only individuals authorized that prospective adoptive parent(s) and
certain disclosures, like medical under State law may conduct criminal adoptive parents can educate each other
conditions or disabilities, can put history background reviews for a home and benefit from each other’s
prospective adoptive parent(s) at risk of study. See comment 9 on § 96.35, for experience. One commenter suggests
rejection in a particular country or further discussion of this issue. that the regulations require agencies and
persons to conduct at least half of the One commenter requests that the term country of origin is required to ensure
training in person. Another commenter ‘‘institutionalized children’’ be that counseling is provided to the birth
requests that the regulations require an replaced. parents. When the child is emigrating
independent licensed social worker to Response: We agree that the training from the United States, we require
conduct the training. curriculum needs to be tailored agencies and persons in § 96.53 to
Response: The IAA requires standards according to the needs of the counsel birth parents about the effects of
for an agency or person to provide a prospective adoptive family. The their consent to an adoption. We
training program to prospective additional suggested topics are generally certainly encourage agencies and
adoptive parent(s). We believe that already encompassed by the broad list persons to undertake voluntarily the
Section 96.48(a)’s standard, that of topics that training should address in task of providing needed services to
agencies and persons provide at least 10 § 96.48(b). We have added some birth families in other countries of
hours of training to prospective additional items that should be origin, if they are permitted to do so by
adoptive parent(s), is appropriate and included in the training required under the country of origin. We do not believe
decline to change the hour requirement. § 96.48(c), however, to ensure that the it would be appropriate to address such
Agencies and persons can exempt prospective adoptive parent(s) are as services in these regulations, however.
parents only as provided in § 96.48(g). fully prepared as possible for the
The standards in § 96.48(d) give adoption of a particular child. Section Section 96.49—Provision of Medical
agencies and persons latitude to design 96.48(c)(3) now requires parents to be and Social Information in Incoming
training sessions and materials based on counseled on any ‘‘medical, social, Cases
the needs of the prospective adoptive background, birth history, educational 1. Comment: Many commenters
family. We are not persuaded that we data, developmental history, or any maintain that the regulations require far
should restrict their flexibility in this other data known about the particular more medical information to be
regard or by requiring that only an child.’’ provided than can be reasonably
independent licensed social worker be We believe the need to ensure that obtained. The commenters are
permitted to conduct the training. families be adequately prepared for an concerned with overburdening and
Finally, the IAA does not authorize the adoption outweighs any concern that harassing foreign orphanages and
Department to require prospective the curriculum will discourage families doctors to the point where they will
adoptive parent(s) to participate in play from adopting. Finally, while the term refuse to provide the medical
groups, or other adoption support ‘‘institutionalized children’’ may carry a information. They also worry that
groups. negative connotation, it is used in this requesting too much information will
3. Comment: Several commenters context to encompass the broad array of cause delays in the adoption process.
remark that mandatory training places childcare centers, programs, and Commenters suggest that agencies and
too heavy a financial and personnel institutions, such as orphanages, that persons be required to use ‘‘reasonable
burden on small agencies or persons. are typically used by countries of origin, efforts’’ to obtain medical information
They suggest that the issues to be not to suggest involuntary commitment on a child. Many other commenters,
covered in the mandatory training be to a mental health or other facility. We however, request that the regulations
provided during the home study decline to change the term, because we force agencies and persons to provide
process. One commenter would like the believe it is appropriate in this context comprehensive medical information.
agency or person who conducts the to ensure that training is inclusive of They maintain that access to accurate
home study to determine how much issues related to children in a wide and comprehensive information about
additional training is necessary. variety of centers, programs, and the child is essential for prospective
Response: Section 96.48(d)(5) institutions. adoptive parent(s). These commenters
specifically allows an extended home 5. Comment: Several commenters ask for stringent standards regarding
study process in cases where training suggest that agencies or persons should medical and social information in
cannot otherwise be provided. We be required to provide post-adoption incoming cases. Still other commenters
decline to change the rules to make the training and counseling. believe that the regulations as written
home study preparer determine how Response: Section 203(b)(1)(A)(iii) of strike an appropriate balance between
many hours of additional training is the IAA requires standards under which the two concerns.
necessary. Within the basic limits set in agencies and persons provide training Response: The Department has
the regulations (ten hours), we want to programs to prospective adoptive retained the basic structure of § 96.49,
give agencies and persons the discretion parent(s) before the parents travel to but made a number of changes to
to make the necessary determinations adopt the child or before the child is specific provisions in response to these
about the training needs of prospective placed with the parents. While we agree comments. The Department recognizes
adoptive parent(s). that post-adoption training and that the provision of accurate medical
4. Comment: Commenters’ counseling may also be very helpful for records on the child is one of the most
suggestions for additions to the required some parents, post-adoption services are important issues facing prospective
adoptive families training curriculum not services that are regulated under the adoptive parent(s), adoptive parents,
include information about racial IAA. Thus we are not making changes and adoptees, but an agency or person
identity issues, general parenting skills, in response to these comments. is generally dependent upon the country
child development, the potential for 6. Comment: Two commenters would of origin to provide such information. It
children to have or develop mental like the regulations to require agencies has tried to balance the need for
illnesses, the risk that children may or persons to offer training to birth detailed and accurate medical
have a communicable disease, and legal parents in countries of origin as well as information about a particular child
recourse for parents after adoption. One to prospective adoptive families. with the practical difficulties inherent
commenter is concerned that the Response: Neither the IAA nor the in obtaining such information in many
curriculum will ‘‘scare’’ families away Convention requires a receiving country foreign countries. The Department has
from adoption. Two commenters believe to provide training to birth parents supplemented the IAA-mandated
that the curriculum needs to be tailored residing in a Convention country. Under timeframes for the provision of medical
for each prospective adoptive family. Article 4(c)(1) of the Convention, the records by adding to the standard in
§ 96.49(a) that such records be provided birth history, and developmental status adoptions of children who have not
to prospective adoptive parent(s) as over time and current developmental been pre-identified in advance of travel.
soon as possible. We have also revised data at the time of the child’s referral for Response: The language of § 96.49(a)
and reorganized §§ 96.49(a) and (b) to adoption. Section 96.49(d)(4) continues reflects section 203(b)(1)(A)(i) of the
clarify that those translations of medical to require reasonable efforts to obtain IAA, which requires medical records to
records it is practicable to provide must available specific information on the be given to the prospective adoptive
be provided within the IAA-mandated known health risks in the specific parent(s) no later than two weeks before
timeframes. region or country where the child the adoption or two weeks before the
The Department has maintained the resides. date on which the prospective adoptive
requirements, in paragraphs (d) and (f), The regulations do not require parent(s) travel to the Convention
that agencies and persons use agencies and persons to administer tests country to complete all procedures
reasonable efforts to provide the for communicable diseases. The relating to the adoption, whichever is
required information. We have added, to Department believes that the correct role earlier. We think this requirement is
§ 96.49(d)(2), a provision that agencies for agencies and persons, most of whom best read to apply only once a child has
and persons must try to obtain do not have staff with medical training, been identified and matched with the
information on any special needs of the is to gather and forward as much prospective adoptive parent(s). Prior to
child. The Department has also added a medical and social information about that time, there is no specific
standard to paragraph (g) calling for the child as is reasonably possible, not ‘‘adoption’’ contemplated, and any
agencies and persons to continue to use to perform medical diagnostic tests travel cannot be to complete all
reasonable efforts until the adoption is themselves. Also, the Department is not procedures relating to a particular
finalized to secure those medical or requiring agencies and persons to use adoption. We do not believe this
social records that could not be obtained standardized health and social history standard was intended or must be read
previously. forms. The governmental interest is in to preclude adoptions of children who
Overall, the standard continues to having agencies and persons get as have not been pre-identified prior to
reflect the Department’s belief that it is much information about the child’s travel, and we do not believe it is
critical that prospective adoptive medical and social history to the necessary to change § 96.40(a) or to add
parent(s) get as much medical prospective adoptive parent(s) as a new standard to address this issue. If
information as possible, but also possible, not in the format of the the prospective adoptive parent(s) have
provides the flexibility necessary in information. not been matched with a child before
light of the practical problems inherent 3. Comment: Several commenters arriving in the country of origin, then
in providing prospective adoptive request that agencies and persons be compliance with the standard in § 96.49
parent(s) with medical records. granted the discretion to withdraw will require that medical information on
2. Comment: A commenter requests referrals of a child in less than a week the child be provided to the prospective
that the regulations more heavily if necessary in order to shorten the adoptive parent(s) either as soon as
emphasize providing birth family amount of time a child spends waiting possible after the child is identified, but
history. It requests that the following to be adopted. They believe 48 to 72 no later than two weeks before the
information on the child be included in hours is appropriate. Other commenters adoption or placement for adoption,
the medical report: birth family bio- suggest a three-week review period, or—if a second trip is needed to
psychosocial history, growth data, while others request establishing a two- complete procedures relating to the
prenatal history, development status at week review period. In addition, several adoption—no later than two weeks prior
the time of referral, specific information commenters request that the regulations to that travel, whichever is earlier.
on known health risks where the child be modified to more specifically lay out 5. Comment: One commenter requests
resides, any known siblings, and the what ‘‘extenuating circumstances’’ that agencies and persons provide a
whereabouts of siblings. Another would be appropriate exceptions to the copy of the child’s medical records to
commenter requests that agencies and one-week review period. Others request the prospective adoptive parent(s) at
persons be responsible for administering that the exception for ‘‘extenuating least three weeks in advance if the
basic testing for communicable diseases. circumstances’’ be omitted. record is not a correct and complete
Two commenters request that agencies Response: The Department has English translation. Several commenters
and persons be required to use amended § 96.49(k) to require the request that an untranslated copy of the
standardized medical health and social accredited agency or approved person to prospective adoptive child’s medical
history forms. give the prospective adoptive parent(s) records be provided to the adoptive
Response: The Department has at least two weeks, instead of one, to family in addition to the English
amended several provisions of § 96.49 to review the referral. In making this versions.
require more specific information on the change, the Department is seeking to Response: The Department has
child’s birth history, if available. In ensure that prospective adoptive amended § 96.49(c) to require agencies
particular, § 96.49(f)(1) now specifically parent(s) have enough time to make an or persons to provide any untranslated
requires reasonable efforts to obtain informed, measured decision, using the medical reports or videotapes or other
available information about the child’s specific medical and social history of reports to prospective adoptive
birth and prenatal history. The the child they wish to adopt, that they parent(s). It continues to require
Department has added a new standard, are capable of properly caring for the accredited agencies and approved
§ 96.49(f)(3), that requires reasonable child. We have retained the provision persons to provide an opportunity for
efforts to obtain available information that permits the referral to be the clients to arrange for their own
about any birth siblings, including their withdrawn earlier, however, to provide translation of the records, including a
whereabouts, whose existence is known flexibility to agencies and persons in the translation into a language other than
to the agency or person or its supervised rare cases in which there are English, if needed.
provider. The Department has also extenuating circumstances involving the 6. Comment: Several commenters
revised § 96.49(d)(3) to require child’s best interests. request that any information obtained
reasonable efforts to obtain available 4. Comment: A commenter requests on the prospective adoptive child be
growth data, including prenatal and the inclusion of language to allow for obtained in accordance with the
Convention country’s laws and 9. Comment: Several commenters orphanage director, physician, or a
procedures. believe Central Authorities, rather than person designated by the Central
Response: In Convention adoptions, the accredited agencies or approved Authority of the country of origin, they
the laws of both countries involved persons, should be responsible for should also be provided with the
must be followed. These regulations providing accurate medical information. original medical records. Other
will not supersede any applicable Response: Under Article 16 of the commenters request that § 96.49(a) and
domestic laws of a Convention country Convention, the Central Authority of the (b) be replaced with language that more
on the collection of information about a country of origin, or other entities closely tracks the IAA requirement for a
prospective adoptive child, as § 96.49(i) authorized to perform certain of its standard that an agency or person
relating to videotapes and photographs duties, must prepare a report on the provide a copy of the medical records of
of the child reiterates. We believe this child. This report must include the child (which, to the fullest extent
is sufficiently clear from the standards information about the child’s identity, practicable, shall include an English
in their entirety that no specific change adoptability, background, social language translation of such records) on
is required in response to these environment, family history, and a date which is not later than the earlier
comments. medical history (including that of the of the date that is two weeks before: (I)
7. Comment: A commenter believes child’s family), and any special needs of the adoption; or (II) the date on which
that it is unnecessary to require a non- the child. The general medical history is the prospective adoptive parent(s) travel
medical individual to document his or just one component of the report. The to a foreign country to complete all
her training and to indicate whether or IAA, on the other hand, requires the procedures in such country relating to
not he or she relied on objective data or Department to impose very specific the adoption. Of particular concern was
subjective perceptions in making a requirements regarding obtaining the fact that the proposed regulation did
medical assessment. medical records on U.S. accredited not appear to set a timeframe for the
Response: The Department believes agencies and approved persons. The production of an English translation of
that it will help the prospective primary purpose of § 96.49 is to the medical records.
adoptive parent(s) better understand the implement the IAA requirements that Response: The Department recognizes
information they are given about a agencies and persons obtain medical that some medical records may,
records and transmit them to the inherently, summarize or collect
prospective adoptive child if they know
prospective adoptive parent(s). information based on other medical
both the training and background of any
10. Comment: Several commenters records, but it does not believe that the
person who contributed observations on request that videotapes be required only type of ‘‘summary’’ of original medical
the child, as well as the basis of his or when it is possible to obtain them from records that the commenters propose
her conclusions about the child. Thus, the child’s country of origin. Two would suffice to meet the IAA
the Department is not deleting commenters believe videotapes of the requirement that a copy of the child’s
§ 96.49(e)(3). The Department has, child should be translated. medical records be provided. While an
however, revised the standard to require Response: The Department made a agency or person would not be
that non-medical individuals provide series of changes to § 96.49 to clarify the precluded from producing a summary of
only information on what data and requirements related to videotapes of medical records on a voluntary basis for
perceptions were used to draw the child. Section 96.49(k) has been its clients, any such summary alone
conclusions. The Department agrees that modified to clarify that prospective would not meet the standard in
requiring an additional level of adoptive parent(s) must be allowed to § 96.49(a), which requires production of
specification as to whether the obtain physician review of videotapes a copy of the medical records.
individual relied on objective data or only if such tapes are available; this The Department has revised and
subjective perceptions in making the provision has not been specifically restructured §§ 96.49(a) and (b) to
assessment is unnecessary. limited to videotapes obtained from the respond to the concern that the
8. Comment: Several commenters child’s country of origin because the proposed rule did not set a time frame
request that the standard in § 96.49(e), relevant question is whether a videotape for the production of translations.
which sets out specific requirements for is available, not where it is available Section 96.49(a) now clearly states that
medical information provided by the from. The Department has also revised the medical records, including, to the
agency or person, apply only if the § 96.49(i) so that it explicitly states that fullest extent practicable, a correct and
agency or person provides medical an agency or person must ensure that complete English-language translation
information that is not the medical videotapes and photographs of the child of such records, must be produced
information provided by the Convention comply with the laws of the country within the time frames established by
country to the agency or person. where taken or recorded. In addition, the IAA.
Response: The Department has § 96.49(c) now requires that an agency Section 96.49(b) now clearly states
revised the standard at § 96.49(e) so that or person must provide the prospective that where any medical record provided
it applies only when the agency or adoptive parent(s) with any is a summary or compilation of other
person is providing medical information untranslated videotapes and an medical records, the agency or person is
other than the information provided by opportunity to translate any videotape also required to provide the underlying
public foreign authorities. We recognize that is provided. medical records, if available.
that the agency or person may not be 11. Comment: Some commenters 12. Comment: Two commenters
able to insist that the public foreign believe that a detailed summary of request that the phrase ‘‘all available
authority include specific information. medical records should normally be medical records’’ be substituted for the
In addition, the Department has added sufficient because original medical phrase ‘‘the medical records’’ in
a provision to specify that, when the records are typically voluminous. Such § 96.49(a) and (b).
agency or person is providing medical commenters also request that if the Response: The Department believes
information covered under the standard, prospective adoptive parent(s) have that this change is unnecessary, because
it must make ‘‘reasonable efforts’’ to been given only a summary of the § 96.49 clearly establishes that the
provide the specific information medical records, if the summary was obligation is to provide the medical
required under § 96.49. produced by anyone other than the records (including any available
underlying medical records related to a company of the prospective adoptive These regulations are not intended to
medical record that summarizes or parent(s)’’ be deleted from §§ 96.50(a) change currently applicable laws, under
compiles information), and to make and 96.51(a), so as to avoid the which a State court determines whether
reasonable and ongoing efforts to obtain implication that use of a guardian is a a placement is in the best interests of a
a wide range of additional medical less desirable approach. child before his or her adoption is
information. Section 96.49(j) also sets a Response: Sections 96.50(a) and finalized in the U.S. State court. In the
standard prohibiting withholding, or 96.51(a) mirror Article 19 of the event that the initial placement is found
misrepresenting, any available medical Convention, which states that Central not to be in the best interests of the
information concerning the child. Authorities shall ensure the ‘‘transfer child, or is otherwise disrupted,
13. Comment: A commenter requests takes place in secure and appropriate § 96.50(d) and (e) of the regulation
clarification that any State standards circumstances and, if possible, in the establish that the agency or person is
requiring a more timely and/or company of the adoptive or prospective responsible for finding an alternate
comprehensive disclosure of medical adoptive parent(s).’’ The phrase, ‘‘if placement for the child.
history would continue to apply to possible’’ provides a degree of flexibility The Department has not changed the
agencies and/or persons licensed in that in cases in which travel with a properly rule to prohibit the return of a child to
State. trained escort offers an appropriate, his or her country of origin in the case
Response: This regulation is not secure alternative for transferring a of a disruption, because there may be
intended to preempt any applicable particular child from the child’s country instances in which such return is in the
State standards that require more timely of origin when adoptive or prospective child’s best interests. Section 96.50(e)(2)
and/or comprehensive disclosure of adoptive parent(s) are unavailable. makes clear that an agency or person
medical history. 2. Comment: A commenter requests must obtain the agreement, in writing,
14. Comment: One commenter that the regulations specify who will of the Central Authority of the country
believes that a U.S.-based physician assume the costs of returning the child of origin and of the Department to any
should be required to evaluate medical to the country of origin in the case of such return.
information. The commenter also disruption when such return is 3. Comment: A commenter requests
requests that the regulations require determined to be in the child’s best that the Department track adoptions that
agencies and persons to provide a list of interests. The commenter also suggests are to be finalized in the United States.
capable U.S. physicians who specialize that for adoptions that are not finalized Response: The tracking of
in interpreting medical information within a set period of time, there should intercountry adoptions is not within the
from applicable countries of origin. be a requirement for a decision to be scope of these regulations on
Response: Mandating that agencies made whether it is in the best interests accreditation/approval. Section 102(e)
and persons retain U.S. doctors directly of the child to remain in a guardianship of the IAA requires the Department and
to review all medical records would be arrangement in the United States or DHS to jointly establish a Case Registry
a major change in the current practice return to the country of origin. Another of all adoptions involving immigration
of intercountry adoptions. Typically, it commenter believes that, even if an of children into the United States
is the prospective adoptive parent(s) adoption is disrupted, the child should regardless of whether an adoption
who select and retain a U.S. physician never be returned to his or her country occurs under the Convention. In
to complete a review and assessment of of origin. addition, section 104 of the IAA
all available information on the child. Response: The Department believes requires the Department to submit an
We see no reason to change this that the standards in § 96.50 adequately annual report to Congress that will
practice. The regulations requiring address the responsibility for costs of provide information concerning
advance disclosure of a child’s medical returning a child to the country of intercountry adoptions involving
information to prospective adoptive origin, in the case of a disruption. immigration to the United States,
parent(s) are designed, at least in part, Section 96.50(f)(1) requires that the including information on adoptions that
to ensure that prospective adoptive agency or person include in its adoption are finalized in a U.S. State court. The
parent(s) have enough time to have the services contract with the prospective reporting requirements set forth in
child’s records reviewed by a U.S. adoptive parent(s) a plan addressing § 96.43 will assist the Department in
physician, if they choose to do so, who will have legal and financial obtaining this information and fulfilling
before they agree to adopt a particular responsibility for transferring custody in its reporting obligations.
child. While it may be helpful for an emergency or in the case of 4. Comment: Several commenters
agencies and persons to provide lists of impending disruption, and for care of emphasize the importance of post-
U.S. physicians who specialize in the child. The contract between the placement monitoring. They express
intercountry adoptions who may be able agency or person and the prospective support for this section of the proposed
to interpret foreign medical records, we adoptive parent(s) should address who regulations. One commenter would like
do not think it is necessary to proper will assume the costs of returning the the regulations to provide minimum
implementation of the Convention or child to his or her country of origin and uniform standards for post-placement
IAA. who will assume the costs of the child’s monitoring.
care until the return is completed. Response: While the Department also
Section 96.50—Placement and Post- Section § 96.50(f)(2) also requires that recognizes the importance of post-
Placement Monitoring Until Final the plan address the circumstances in placement monitoring, the standards
Adoption in Incoming Cases which the child will be returned to the provided in § 96.50 are straightforward
1. Comment: Two commenters child’s country of origin, as a last resort, and we do not believe additional
maintain that sending a guardian to if that is determined to be in the child’s changes to the regulations, to require
bring a child from the country of origin best interests. The Department believes additional uniformity in how post-
should be an equally acceptable that these provisions are adequate to placement monitoring is conducted, are
alternative to prospective adoptive cover the rare case in which there is a required.
parent(s) traveling to the country of disruption and it is determined to be in 5. Comment: Several commenters are
origin to receive a child. They request the child’s best interests to return to the concerned that adoptive parent(s) will
that the words ‘‘and, if possible, in the country of origin. not comply with the post-placement
monitoring (as opposed to post-adoption cooperating with post-adoption 4. Comment: A commenter requests
monitoring) requirements. For the reporting requirements is at least as that the regulations require agencies and
protection of agencies and persons, they great as the potential for non- persons to be responsible for placement
would like the regulations to provide a cooperation with regard to post- of a child within an identified time
means for securing parental compliance placement reporting. This issue is not frame after a dissolution takes place.
with post-placement supervision. One appropriately addressed by holding Response: The Department is not
commenter requests that the regulations agencies and persons responsible in the changing the rule to mandate that
require agencies and persons to notify accredition/approval context for failing agencies or persons take actions after a
prospective adoptive families of the to produce post-adoption reports, dissolution takes place. Adoption
frequency and total number of post- however, particularly because post- services provided after dissolution are
placement reports. adoption reporting and other services post-adoption services, which are
Response: These regulations include provided after the child’s adoption are outside the scope of these regulations.
standards on post-placement monitoring not included in the IAA’s list of While both the IAA and the Convention
because post-placement monitoring is adoption services that must even be contain provisions dealing with
an adoption service under the provided by an accredited agency or disruptions, which occur before an
Convention and the IAA. Their focus is approved person, and because we are adoption is finalized, neither mandates
necessarily on adoption service not regulating adoptive parents in these any behavior with respect to
providers, however, not on prospective regulations. While § 96.51(e) of the dissolutions (other than reporting,
adoptive parent(s), who the Department proposed rule would have regulated whenever possible). The Department
recognizes may choose not to cooperate agencies and persons who voluntarily has tried to be consistent in not
with an agency or person providing provided post-adoption services, the regulating post-adoption services in
post-placement monitoring. While these Department has decided to delete the these regulations on accreditation/
regulations do not regulate prospective standard to be consistent with the approval. Therefore, § 96.51(b) requires
adoptive parent(s) directly, the agency general approach taken in the IAA and only that the agency’s or person’s
or person may take into account the these regulations, of not regulating any adoption services contracts with
prospective adoptive parent(s)’ lack of post-adoption services. prospective adoptive parent(s) inform
post-placement cooperation in We understand that countries of the parents whether services will be
determining whether it is appropriate to origin that require post-adoption reports provided if the adoption is dissolved
proceed to adoption. may stop working with U.S. agencies or and, if so, include a plan describing the
Please note that § 96.50(g) only persons or close adoption programs to responsibilities of the agency or person
requires that the agency or person U.S. prospective adoptive parent(s) if upon a dissolution.
provide post-placement reports to the they cannot obtain the post-adoption We recognize that this may be
Convention country if they are required reports. We anticipate that this issue unsatisfactory for State child welfare
by the Convention country, and then will be addressed, however, by all authorities faced with finding
only until the adoption of the child is providers and parents working placements for children from dissolved
final. Section § 96.50(g)(1) of the cooperatively together in the intercountry adoptions. This rule is not
regulations has been revised to require understanding that doing so benefits all intended to change any applicable State
that prospective adoptive parent(s) be concerned, including persons who hope child welfare or protection law,
informed about the required post- to adopt in the future. however, or any applicable State law on
placement reports in the written 2. Comment: A commenter the financial responsibility of parents
adoption services contract prior to the recommends that § 96.51(a) be deleted for the post-dissolution care of the
referral of the child for adoption. The because it is redundant with § 96.50(a). child. We note also that section 205 of
Department expects such notice would The commenter also recommends that the IAA amended section 422(b) of the
include the frequency and number of § 96.51(c) and § 96.50(c) be switched. Social Security Act, 42 U.S.C. 622(b) to
post-placement reports. We are hopeful Response: Post-placement monitoring require States to collect and report
that this written notice will encourage is the subject of § 96.50, whereas § 96.51 information on children who enter into
prospective adoptive parent(s) to deals with post-adoption services. Thus State custody because of the disruption
cooperate with the agencies or persons, it is not appropriate to switch of a placement for intercountry adoption
because all parties will want to ensure §§ 96.51(c) and 96.50(c), or to delete or the dissolution of an intercountry
that the adoption is finalized § 96.51(a). For an explanation of the adoption. Thus, it should be possible in
successfully. differences between post-placement the long run to monitor disruptions and
monitoring and post-adoption services, dissolutions and to evaluate any
Section 96.51—Post-Adoption Services please see the response to comments on problems they are creating.
in Incoming Cases § 96.2 in subpart A.
1. Comment: Several commenters are 3. Comment: A commenter believes Section 96.52—Performance of Hague
concerned that parents will not comply the Central Authority in the country of Convention Communication and
with any post-adoption reporting origin should be notified if an adopted Coordination Functions in Incoming
requirements imposed by countries of child is re-placed with another family in Cases
origin. Other commenters recommend the United States after a disruption. 1. Comment: A commenter believes
that agencies and persons be required to Response: Section 96.50(f)(4) requires that it is unreasonable for an agency or
provide post-adoption reports. Still agencies and persons to include in their person to keep the Central Authority of
other commenters recommend that written adoption services contract with the Convention country and the
agencies and persons provide post- the prospective adoptive parent(s) a Department continuously informed
adoption services when the family plan describing, among other things, about the adoption process.
requests such services. They suggest how the Central Authority of the child’s Response: The Department has
that providing post-adoption services country of origin and the Department amended §§ 96.52(a) and 96.55(a) to
should not be voluntary. will be notified if there is a disruption clarify that an agency or person must
Response: The Department recognizes in the United States before final keep the Central Authority of the
that the potential for parents not adoption. Convention country and the Department
informed about the adoption process parent(s) receive a copy of the medical Response: Although we understand
only as necessary. So, for example, if records of the child prior to the that a pre-placement meeting typically
regulations outside this Part, such as adoption. makes a child feel more comfortable
visa regulations, require an agency or Response: The Department recognizes about the transition to an adoption
person to provide information to the that providing substantial background placement, the Convention and the IAA
Department about the completion of a information on a child can be helpful are silent on the subject of requiring a
particular step in the adoption process, for both prospective adoptive parent(s) pre-placement visit, and the Department
this standard ties the agency’s or and children. With such information, does not believe it is appropriate to
person’s accreditation status to prospective adoptive parent(s) may impose such an additional requirement
compliance with the other regulation. better understand the needs of the child, in these regulations on accreditation/
We believe this clarification will reduce and a child will more likely be placed approval. If applicable State law
any undue burden on agencies or in a home where his or her needs would requires a pre-placement visit, then that
persons. be met. We nevertheless have not requirement will apply to an
2. Comment: A commenter suggests expanded the standard in § 96.53(a). intercountry adoption of a U.S. child
that § 96.52(e) be deleted because it is The standard is consistent with IAA emigrating to a Convention country.
too vague and presents a federalism which incorporates the requirements of 3. Comment: Several commenters
issue. Section 96.52(e) requires the Convention Article 16, which requires request that the minimum age for
agency or person to take appropriate information on the child’s identity, considering the child’s wishes about the
measures to perform any tasks in a adoptability, background, social adoption be changed from ten to twelve
Convention adoption case that the environment, family history, and years.
Department identifies are required to medical history, including that of the Response: The Department has
comply with the Convention, the IAA, child’s family, and any special needs of changed § 96.53(d) in response to these
or any regulations implementing the the child. We do not believe it is comments, and in recognition of the fact
IAA. appropriate to make this standard more that twelve is a widely accepted
Response: We have not deleted this burdensome, but we note that any State minimum age of consent as reflected in
provision because we want to ensure law requirements applicable to a child the Uniform Adoption Act, § 2–401(c).
that the Department can rely upon the Section § 96.53 now provides that,
background study will continue to
accredited agencies and approved unless State law provides a different
apply.
persons to perform those tasks entrusted age, if the child is twelve or older an
While we have not changed the
to them under the IAA’s scheme for agency or person must give due
substantive requirements of § 96.53(a),
governing Convention adoptions consideration to a child’s wishes or
we have reorganized §§ 96.53(a) and (b) opinions before determining that an
involving the United States. Accredited to present the requirements more
agencies and approved persons will be intercountry adoption placement is in
clearly. For example, it should now be the child’s best interest. While some
notified of a case-specific task the clear that an agency or person is always
Department identifies as necessary. We State laws may be silent on this
responsible for ensuring that the question, we believe that most States
do not feel this section presents a information listed in §§ 96.53(a)(1)–(3)
federalism issue because the IAA gives generally require a child’s wishes must
is included in the child background be considered at an age between 10 and
the Department broad authority over study. We have also revised § 96.53(b) to
Convention implementation, including 14 years.
clarify that a supervised provider may 4. Comment: A commenter
the coordination of activities under the also prepare a child background study,
Convention by persons subject to the recommends that the regulations require
so long as any applicable review and consent from both birth parents, not just
jurisdiction of the United States. approval requirements are met.
Moreover, this rule does not direct state the birth mother.
Section 96.53(e) requires that the U.S. Response: The Department is not
action. The States may continue to agency or person send the child changing § 96.53(c) in response to these
license agencies and persons to perform background study to the Central comments, because § 96.53 of the
adoption-related services; where these Authority or other competent authority regulations reflects the language of
regulations apply, they will be in or accredited bodies of the receiving Article 4 of the Convention on consents.
addition to, not replacing, state country. In response to the suggestion The Department does not want to
regulation. that the medical records of a child impose any requirements for consents in
Standards for Cases in Which a Child should be transmitted prior to the addition to those required specifically
Is Emigrating From the United States adoption, we have added to § 96.53(e) under the Convention and IAA. Section
(Outgoing Cases) language that makes it clear that the 96.53(c), consistent with Article 4,
agency or person should take all requires that the consent of any persons
Section 96.53—Background Studies on appropriate measures to transmit the whose consent is necessary for the
the Child and Consents in Outgoing child background study before the adoption has been obtained.
Cases child’s adoption. The regulations do not Accordingly, in any case in which State
1. Comment: Several commenters prohibit a U.S. accredited agency or law requires the consent of the birth
recommend that the regulations require approved person from also providing father, in addition to that of the birth
additional information to be provided in the child background study to the mother, § 96.53(c) would require that
the child’s background study. prospective adoptive parent(s) directly, the consent of both birth parents be
Recommendations for such additions if consistent with applicable State law obtained.
include: a psychosocial evaluation, non- and the law of the receiving country. 5. Comment: One commenter would
identifying medical and genetic 2. Comment: Several commenters like the phrase ‘‘takes all appropriate
information, the name and contact would like the regulations to measures to ensure’’ found in § 96.53(a)
information of the physician who recommend a pre-placement visit and § 96.53(c) changed to ‘‘ensures.’’
performed the assessment, and non- between the child and the prospective Response: We have kept ‘‘takes all
identifying family history. Commenters adoptive parent(s), when the child is of appropriate measures to ensure’’ in the
recommend that prospective adoptive appropriate age. final rule, because primary providers
will be working with public domestic Because the Department does not been met, an agency or person is now
authorities or competent authorities intend to create Federal consent required by §§ 96.54(a)(1) through (4) to:
who will be performing some of the requirements beyond those required (1) disseminate information about the
tasks required under the Convention to under the Convention and applicable child and the child’s availability for
complete a Convention adoption. The State law, we have removed from adoption through print, media, and
primary provider is not responsible for § 96.53(c)(5) the specific requirement internet resources designed to
the quality of a public domestic that a child be counseled and duly communicate with potential U.S.
authority’s or competent authority’s informed that his or her consent would prospective adoptive parent(s); (2) list
services when they complete result in the child living in another information about the child on a
Convention tasks, as reflected in § 96.14. country. national or State adoption exchange or
Because these authorities are not registry for at least sixty calendar days
Section 96.54—Placement Standards in
accountable to the primary provider, it after the birth of the child; (3) respond
Outgoing Cases
would be unfair to set a standard to inquiries about adoption of the child;
making the primary provider 1. Comment: Numerous commenters and (4) provide a copy of the child
responsible for their actions. Agencies would like the regulations to make it background study to potential U.S.
and persons are required, however, to more difficult to place U.S. children prospective adoptive parent(s).
take all appropriate measures to ensure abroad. Some commenters suggest that Note that, in response to several
that Convention tasks are conducted in agencies and persons should be comments, the time period set out in
accordance with the standards set forth prohibited altogether from placing § 96.54(a)(2) for listing a child on a
in § 96.53. children who are born in the United national or State adoption exchange or
6. Comment: Several commenters States for intercountry adoption. Other registry has been increased from thirty
recommend that the regulations require commenters agree that U.S. children days to sixty days after the birth of the
that birth parents or other authorities may be placed overseas, but think that child. We believe this additional time
the standard requiring reasonable efforts will help ensure that reasonable efforts
whose consent is necessary to be
to find a timely adoptive placement for are taken to place the child within the
counseled that their consent will result
the child in the United States is too United States, without unduly delaying
in the child living in a foreign country.
vague. Another commenter notes that an intercountry adoption if one proves
They also recommend that the specific
not all children adopted from the to be in the best interests of the child.
country of destination be named during
United States will be infants, and asks This time period remains sufficiently
the counseling.
whether children who are not newborns short to avoid harming a child by
Response: We agree that full are required to be placed on a registry keeping it on a registry for an excessive
disclosure of the effects of consent is for a specific period of time. Other period of time (a concern expressed by
important, but we are not amending commenters request that the length of some adoption experts who testified
§ 96.53(c) in response to this comment. time of listing on an adoption exchange before Congress during consideration of
The purpose of § 96.53(c) is to or registry be changed from thirty to the IAA).
incorporate the requirements on sixty days. Note also that the requirement to be
consents set forth in Article 4 of the Response: There is no basis in the registered for ‘‘at least sixty days after
Convention, not to impose any Convention or the IAA for prohibiting the birth of the child’’ applies both to
additional specific requirements on U.S. children from participating in newborn children and to older children.
what information must be provided to intercountry adoption. The Convention That is, every child must be listed for at
persons or institutions whose consent explicitly recognizes that intercountry least sixty days. The limitation of ‘‘after
must be obtained. adoption may offer the advantage of a the birth of the child’’ is intended to
Article 4 of the Convention requires permanent family to a child for whom preclude listing children before they are
that the country of origin ensure that a suitable family cannot be found in his born.
persons whose consent is required be or her country of origin. Article 4 of the 2. Comment: Some commenters
counseled as may be necessary and Convention states that, after possibilities recommend that children emigrating
informed of the effects of their consent, for placement within the country of from the United States be provided with
particularly with respect to whether an origin have been given ‘‘due assurances of citizenship in their
adoption will result in the termination consideration,’’ competent authorities adopted countries.
of the legal relationship between the may determine that intercountry Response: The Department cannot
child and the birth family. The adoption is in the child’s best interests. control how Convention countries will
Convention language does not contain Accordingly, section 303(a)(1) of the apply their citizenship laws. Article 5 of
any additional specific requirements IAA requires that an accredited agency the Convention provides, however, that
regarding the contents of the counseling, or approved person ensure that, in a a Convention adoption may proceed
and the relevant IAA provision simply Convention adoption involving only after the competent authorities in
states that State courts with jurisdiction emigration from the United States, ‘‘it the receiving country determine that the
over a Convention adoption must be has made reasonable efforts to actively child is or will be authorized to enter
satisfied that the agency or person recruit and make a diligent search for and reside permanently there.
complied with Article 4. prospective adoptive parent(s) to adopt Consistent with this requirement,
Where applicable State laws establish the child in the United States,’’ and that § 96.55(d)(4) requires U.S. agencies or
more specific requirements about the ‘‘despite such efforts, it has not been persons to transmit or provide to State
contents of counseling, the agency or able to place the child for adoption in courts evidence that the child will be
person will have to comply with these the United States in a timely manner.’’ authorized to enter and reside
laws in addition to the IAA. Moreover, In furtherance of section 303(a)(1), permanently (or on the same basis as
§ 96.54(d) specifically provides that, if § 96.54(a) provides guidance to agencies that of the prospective adoptive
State law requires, agencies and persons or persons on how to satisfy the parent(s)) in the receiving country.
must disclose to birth parents that the ‘‘reasonable efforts’’ standard. Except in 3. Comment: Certain commenters
child will be adopted by parents who special circumstances, to demonstrate believe that the regulations should
reside outside of the United States. that the reasonable efforts standard has mandate that receiving countries other
than the United States provide post- efforts to place siblings together ‘‘to the overseascitizens.html). Otherwise, the
adoption services. extent consistent with State law.’’ cost of returning the child to the United
Response: Article 9 of the Convention 7. Comment: Several commenters States may depend on what person or
requires each country to promote post- request that the U.S. accredited agency entity has legal custody or guardianship
adoption services, but there is no or approved person be informed if there of the child.
requirement in the Convention that is a disruption in an outgoing case. They 8. Comment: Several commenters
case-specific post-adoption services be also request that the standard address recommend that the home studies for
provided in a receiving country. The who will pay for the child’s prospective adoptive parent(s) of
availability of these services will be transportation back to the United States children emigrating from the United
determined by the receiving country, its if returning the child is determined to States include the same information that
adoption service providers, and its law. be in the child’s best interests. is required in § 96.47(a) of the
The Department does not have the Response: The Department expects regulations for home studies involving
authority to impose such a requirement that an agency or person will typically immigrating children.
on Convention countries. remain in contact with the relevant Response: The Department is not
4. Comment: One commenter would entities in the receiving country as a making any change in response to these
like the regulations to address access to result of its compliance with the comments. The contents of a home
and retention of records in the receiving standards set forth in §§ 96.54(i)–(k), study in an outgoing case under the
Convention country about U.S. children and therefore will likely be aware of any Convention will be determined by the
placed in that country. disruption. Article 21 of the Convention law of the receiving country and the law
Response: The Department has no gives, however, the Central Authority of of the U.S. State where the adoption is
authority to impose such a requirement the receiving country the primary proceeding.
responsibility for determining when an 9. Comment: Two commenters
on a receiving country. Access to and
adoptive placement is not in the best recommend that § 96.54(b) include
retention of records held in a
interests of the child. If the Central language that specifies not merely that
Convention country will be governed by
Authority of the receiving country or, a timely placement was sought, but that
the laws of that country.
where appropriate, another entity a qualified adoptive placement was
5. Comment: One commenter
performing its duties, determines that sought.
questions the authority of the Response: The Department recognizes
continued placement of a child with the
Department to create or to impose on that locating a qualified placement is as
prospective adoptive parent(s) is not in
States any ‘‘preference’’ with regard to the child’s best interests, it will have a important as finding a placement
‘‘best interests of the child’’ in the number of responsibilities to protect the quickly. We have changed § 96.54(b) to
standards. child. For example, the Central state that efforts must be made to find
Response: The Department does not Authority, or other entity performing its a timely and qualified adoptive
intend in this rule to create or impose duties, will have to arrange for the child placement.
new ‘‘preferences’’ that would influence to be removed from the prospective 10. Comment: One commenter
States concerning the best interests of placement and will have to arrange requests that a ‘‘relative’’ be defined. It
the child standard. Section 96.2, in temporary care; and, in consultation believes that if ‘‘relative’’ is not spelled
defining ‘‘Best interests of the child’’ for with the Central Authority of the out clearly, the exception in § 96.54(a)
the purposes of this part, specifically country of origin (the Department) or, as from efforts to find a timely adoptive
states that the term shall have the appropriate, other entities performing placement in the United States for
meaning given to it by the law of the U.S. Central Authority duties under the adoptions by relatives will be subject to
State with jurisdiction to decide Convention, it will have to arrange for abuse.
whether a particular adoption or a new placement in the receiving Response: The State court that has
adoption-related action is in the child’s country. If it cannot find an alternative jurisdiction over an intercountry
best interests. In this context, the placement, the Central Authority, or adoption will look to its own State law
standards require that an agency or other entity performing its duties, as to determine whether it is satisfied that
person must determine that a placement appropriate, must arrange for the return reasonable efforts have been made to
is in a child’s best interests, consistent of the child to the United States. Section find a U.S. placement. Accordingly, we
with applicable State law on best 96.54(k) requires that the agency or do not believe it is necessary to provide
interests of the child. Ultimately, it is up person consult with the Department a definition of ‘‘relative’’ in these
to the State court with jurisdiction to before it arranges any return to the regulations in order to deter abuse of
determine if the intercountry adoption United States of any child who has this exception.
meets all State law requirements and emigrated in connection with a 11. Comment: Several commenters
any applicable Convention and IAA Convention adoption, and the recommend the elimination of the
requirements. Department anticipates that it will exception to reasonable efforts provided
6. Comment: A commenter asks where consult with the relevant agency or in § 96.54(a), which allows birth parents
the Department finds authority to person, as appropriate, in any instance to identify specific adoptive parents.
mandate that the agency or person use in which it learns of contemplated Other commenters would like the birth
‘‘diligent efforts to place siblings arrangements for return that do not parents to have more input on who
together.’’ already involve the agency or person. adopts their child.
Response: Consistent with our general Under the Convention, returning a Response: We have not made changes
approach of not creating new Federal child to the country of origin is a last in response to these comments, other
requirements for Convention cases resort. The child may still be a U.S. than to clarify, in § 96.54(b), that the
involving U.S. children where there is citizen and could be eligible for the standard does not, in fact, provide an
not specific language in the Convention Department to pay for his or her exception to the ‘‘reasonable efforts’’
or the IAA, and in response to this transportation expenses through the rule; rather it provides exceptions to the
comment, we have modified the Department’s loan repatriation program prospective adoptive parent recruiting
standard at § 96.54(c)(2) to require that (for more information go to http:// procedures set forth in § 96.54(a)(1)–(4),
agencies and persons make diligent travel.state.gov/law/ thereby recognizing that in some cases,
‘‘reasonable efforts’’ can include no licensing authority from obtaining 2. Comment: Two commenters
efforts at all, if no such efforts are in the information to the extent permitted or support the ability of accrediting
child’s best interests. The regulations required under the State law of the entities to vary the length of
also permit a State court to accept or licensing authority. accreditation periods, and request that
reject an accredited agency’s or the Department allow agencies and
Subpart G—Decisions on Applications
approved person’s recommendation that persons to volunteer to become initially
it is not in the best interests of a for Accreditation or Approval accredited or approved for other than
particular child that the procedures set Subpart G is organized in the same four years. Alternatively, the
forth in § 96.54(a)(1)–(4) be followed. way as in the proposed rule, and commenters request that the Department
This approach is fully consistent with includes § 96.57 (Scope); § 96.58 require accrediting entities to choose
the Convention, which requires merely (Notification of accreditation and which agencies or persons will be
that ‘‘due consideration’’ be given to approval decisions); § 96.59 (Review of accredited or approved for other than
placing the child in the United States, decisions to deny accreditation or four years by a random process.
as well as with the IAA. approval); § 96.60 (Length of the Response: The criteria for choosing
On the question of birthparent accreditation or approval period); and which agencies and persons will be
preferences, the rule aims for § 96.61 (Reserved). accredited or approved for a period of
consistency with current practices As discussed below, Section 96.60(b) other than four years will be established
under State law, by allowing birth has been modified to allow the by the accrediting entities and approved
parents to select among prospective accrediting entity more discretion. by the Department. The Department
adoptive parent(s), so long as State law believes that the accrediting entities will
permits them to do so. Some birth Section 96.59—Review of Decisions To have the expertise to decide the
parents may prefer that their child be Deny Accreditation or Approval appropriate criteria to make such
placed with a relative in another Comment: Two commenters believe determinations, and that the Department
country who has the capacity to provide that the Department should revise should not attempt to predetermine how
suitable care for the child. Other birth § 96.59 to provide a right of such decisions are made. For example,
parents may prefer a non-relative administrative review of denied it is unclear whether the wishes of the
placement abroad. Nothing in the applications for accreditation or agency or person should be given
Convention or the IAA warrants taking approval. One commenter states that weight, whether the process should be
a course different from applicable State such review is particularly necessary for random, or whether the period should
law on the question of birthparent the initial implementation period. reflect the degree to which the agency
preferences. or person demonstrates ‘‘substantial
12. Comment: One commenter seems Response: The Department is not
compliance.’’ Thus, we have not
to believe that the accreditation/ revising § 96.59 in response to these
changed the regulation to include such
approval standards may give the comments, because denial of
criteria. In addition, the Department has
misleading impression that it will be an accreditation or approval is not
modified § 96.60(b) to remove the
accredited agency or approved person included as an adverse action under
requirement that accrediting entities
who will decide the fate of outbound section 202(b)(3) of the IAA and is
consult with the Department before
children when, in actuality, it will be therefore not subject to a right of
deciding the exact period for which a
done by State courts. judicial review or administrative
particular agency or person will be
Response: It is correct that the State review. The Department notes, however,
accredited or approved in the first
courts, not agencies or persons, will that § 96.59(b) permits the agency or
accreditation or approval cycle. We
decide whether an outgoing adoption person to petition the accrediting entity
believe that this approach will improve
complies with applicable provisions of for reconsideration of the denial,
the efficiency of the accreditation
the Convention, the IAA, and State law, pursuant to the accrediting entity’s
process.
and thus may proceed. These standards internal review procedures. For further
apply to agencies and persons, however, discussion of this issue, please refer to Subpart H—Renewal of Accreditation
and as such address Convention tasks Section IV, C, paragraph 11 of the or Approval
that may be required of an agency or preamble for the proposed rule, Subpart H is organized in the same
person. Such tasks may include published at 68 FR 54064, 54087. way as in the proposed rule, and
gathering information and submitting it Section 96.60—Length of Accreditation includes § 96.62 (Scope); § 96.63
to the court in outgoing cases, in which or Approval Period (Renewal of accreditation or approval);
case the agency or person must submit and § 96.64 (Reserved).
information to the State court that 1. Comment: Two commenters request Section 96.63 has been revised in
satisfies the Convention and IAA that the regulations state that the fees for response to comments, discussed below,
requirements. accreditation and approval will be and § 96.63(a) has been revised to clarify
adjusted to reflect whether an agency or that, while the accrediting entity will
Section 96.55—Performance of Hague person is accredited or approved for tell accredited agencies and approved
Convention Communication and three or five years, instead of four. persons it monitors of the date by which
Coordination Functions in Outgoing Response: The Department agrees that they should seek renewal, it is the
Cases the length of the accreditation or accredited agency’s or approved
Comment: A commenter requests approval period is a factor that an person’s responsibility to seek renewal
clarification that nothing precludes accrediting entity may consider when in a timely fashion.
access to adoption process information setting its fees, but because the fee
by a State licensing authority to the schedules are not included in these Section 96.63—Renewal of
extent otherwise authorized by State regulations the Department is not Accreditation or Approval
law. making any change in response to this 1. Comment: A commenter requests
Response: The commenter is correct. suggestion. Please see the comments on that the Department add ‘‘probation’’ to
Nothing in the Convention, the IAA, or § 96.8 for discussion of accrediting § 96.63 as another status for an
this part is meant to preclude a State entity fees. applicant. The commenter suggests that
this status could last for up to nine the duties of accrediting entities to applies to accrediting entity oversight
months after the expiration of an monitor accredited agencies or and requires an accrediting entity to
accreditation or approval period and approved persons annually. consider an accredited agency’s or
provide accredited agencies or approved Specifically, the commenter states that approved person’s actual performance,
persons a period within which to the Department should specify that for the purposes of monitoring and
correct any deficiencies in their accrediting entities will monitor enforcement, in deciding whether the
compliance with the standards of substantial compliance based on a accredited agency or approved person is
subpart F. weighting and rating system. in substantial compliance with these
Response: We have not added the Response: The Department believes regulations. Therefore the Department
status of ‘‘probation’’ to the rule because that this is addressed in the rule, as does not believe it is necessary to revise
it is not a concept used in the IAA. We § 96.66(a) provides that an accrediting the rule to respond to this concern.
believe, however, that the rule already entity must monitor accredited agencies 4. Comment: One commenter suggests
addresses the commenter’s concern, to and approved persons at least annually that each agency or person be required
the extent that § 96.63(c) provides that to ensure that they are in substantial to provide a representative with whom
an accrediting entity may defer its compliance with the standards in the accrediting entity can have ongoing
renewal decision in order to give an subpart F, as determined using a communications about compliance with
accredited agency or approved person method approved by the Department in accreditation standards.
notice of any deficiencies and an accordance with § 96.27(d). Response: The Department agrees that
opportunity to correct them before the To further strengthen the accrediting it will be important for accrediting
accrediting entity decides whether to entity’s oversight, however, the entities to have clear channels of
renew the accreditation or approval. Department has added § 96.66(c), under communication with accredited
2. Comment: A commenter asserts which an accrediting entity must agencies and approved persons, but
that the focus of accrediting entities in require accredited agencies and does not believe this must be addressed
renewal applications should be on an approved persons to attest annually that in the rule. The Department intends to
agency’s or person’s performance, rather they have remained in substantial allow accrediting entities and accredited
than on merely reviewing documents. compliance and to provide supporting agencies and approved persons to set up
Response: The Department has documentation to indicate ongoing day-to-day communication procedures
revised § 96.63(d) to incorporate compliance with the standards in that work for them.
specifically into renewal procedures the subpart F. Any other additional 5. Comment: A commenter states that
provisions of § 96.24, relating to specifications related to the annual accrediting entities should not conduct
monitoring duties of accrediting entities investigations. It believes that allowing
procedures for evaluating applicants for
will be detailed in the agreement them to perform investigations will
accreditation or approval. Section 96.24
between the accrediting entity and the result in a situation similar to the
provides that accrediting entities may
Department. problems currently facing State
conduct interviews, as well as
2. Comment: A commenter requests licensing authorities, which it believes
document reviews, during site visits.
that the Department add to subpart I a do not have sufficient legal authority or
Thus, an accrediting entity’s renewal
system for oversight of accredited personnel to do appropriate
evaluation of an accredited agency or
agencies and approved persons through investigations.
approved person, like its initial Response: The Department is taking
a complaint system. The commenter
evaluation, may include both document no action in response to this comment.
also notes the importance of oversight
review and interviews. See also the Section 202(b)(2) of the IAA clearly
through the investigation of complaints.
discussion of this issue in response to Response: Oversight through review gives accrediting entities the
comments on § 96.27. The Department of complaints is primarily addressed in responsibility for ongoing monitoring of
also notes that § 96.27(b) requires an subpart J of this rule. Section 96.66(a) accredited agencies and approved
accrediting entity to consider an provides that the accrediting entities persons, including review of
accredited agency’s or approved must investigate complaints about complaints, and the Department
person’s actual performance, for the accredited agencies and approved believes enough ‘‘checks’’ and funding
purposes of renewal, in deciding persons, as provided for in subpart J. are built into the accreditation system to
whether the agency or person is in Also, the accrediting entities are ensure that accrediting entities will
substantial compliance with the authorized by § 96.66(b) to conduct conduct properly any necessary and
standards in subpart F. unannounced site visits at an accredited appropriate investigations of accredited
agency’s or approved person’s premises agencies and approved persons. If the
Subpart I—Routine Oversight by
for the purposes of investigating a Department finds that an accrediting
Accrediting Entities
complaint against an accredited agency entity is failing to monitor adequately
Subpart I is organized in the same or approved person. Therefore, we did accredited agencies or approved
way as in the proposed rule, and not make any additional modifications persons, the Department may suspend
includes § 96.65 (Scope); § 96.66 to subpart I. or cancel the accrediting entity’s
(Oversight of accredited agencies and 3. Comment: A commenter states that designation under § 96.10. Further, the
approved persons by the accrediting the oversight provisions of the Department, under § 204(b)(1) of the
entity); and § 96.67 (Reserved). regulations should focus on checking IAA, must take adverse action when an
Section 96.66 has been revised in the performance of agencies and persons accrediting entity fails or refuses to act
response to comment, as discussed through interviews with clients and after consultation with the Department
below. personnel, rather than simply reviewing and the accredited agency or approved
documents. person is not in substantial compliance

Section 96.66—Oversight of Accredited Response: This comment is very with the standards in subpart F. In this
Agencies and Approved Persons by the similar to the comment on § 96.63 with auxiliary role, the Department may
Accrediting Entity respect to procedures for renewals of undertake any necessary additional
1. Comment: A commenter accreditation and approval, and to investigation to determine if adverse
recommends that the Department clarify comments on § 96.27. Section 96.27(b) action is warranted. Finally, the
Department notes that issues involving framework. Thus, these regulations complaint, this may allow accrediting
violations of law will properly be provide for a complaint process that entities to become aware of problems at
referred by the accrediting entity to will ensure that most unresolved an earlier stage than they would
appropriate law enforcement entities. problems with accredited agencies or otherwise, in turn lessening the need for
approved persons get reported to, and accrediting entities to take adverse
Subpart J—Oversight Through Review investigated by, the accrediting entities. actions, improving performance by
of Complaints If the accrediting entity fails to act, the accredited agencies and approved
Subpart J is organized in the generally Department will investigate, as persons, and promoting greater
appropriate, and determine if adverse compliance with the Convention, the
same way as in the proposed rule,
action is warranted. The Complaint IAA, and these regulations. Thus, we are
although the titles and content of some
Registry will assist the Department in not making the suggested changes.
of the provisions of the final rule have 3. Comment: Several commenters
monitoring whether the accrediting
been revised to more accurately convey think that individuals who wish to file
entity is taking action as appropriate.
the allocation of responsibilities and a complaint against an accredited
The Department has added a provision
procedures for complaint review. agency or approved person should be
at § 96.70(e) that makes clear that the
Subpart J includes § 96.68 (Scope); able to make their complaint directly to
Department retains authority to take any
§ 96.69 (Filing of complaints against the Complaint Registry without first
action the Department deems
accredited agencies and approved having to attempt resolution with the
appropriate with respect to complaints.
persons); § 96.70 (Operation of the agency or person itself. Commenters fear
Complaint Registry); § 96.71 (Review by Section 96.69—Filing of Complaints that an accredited agency or approved
the accrediting entity of complaints Against Accredited Agencies and person might try to dissuade individuals
against accredited agencies and Approved Persons from filing a complaint or take
approved persons); § 96.72 (Referral of 1. Comment: Two commenters suggest retaliatory actions against them if they
complaints to the Secretary and other that complaints governed by this complain. One commenter expresses
authorities); and § 96.73 (Reserved). subpart should relate only to concerns regarding how the prohibition
Section 96.68 has been revised to Convention adoptions and not to other on retaliatory action toward a
explain the types of complaints that adoption services provided by an prospective adoptive family will be
accrediting entities will process against agency or person. monitored and over whether
accredited agencies and approved Response: The Department agrees that prospective adoptive parent(s) that file
persons. Section 96.69 has been revised the scope of this subpart should be so complaints will still be treated unfairly
to simplify the description of the limited, and has modified § 96.68, the by an agency or person.
process for filing complaints against scope of subpart J, to clarify that the Response: The complaint procedures
accredited agencies and approved procedures described therein only apply outlined in these regulations include
persons, and to clarify what types of to complaints that raise an issue of several levels of review that should
individuals may file complaints through compliance with the Convention, the ensure that individuals who file
the Complaint Registry or otherwise. IAA, or the regulations implementing complaints are treated fairly. If an
Section 96.70, on the operation of the the IAA. agency or person takes any action to
Complaint Registry, has been revised to 2. Comment: Two commenters discourage a client or prospective client
better convey the functions that this recommend that the Department narrow from making a complaint or retaliates
system will be able to perform with the types of complaints that can be filed against a client for making a complaint,
respect to complaints. These and other with the Complaint Registry or with the agency or person will not be in
changes are discussed below, and at accrediting entities. In particular, one of substantial compliance with § 96.41(e).
section III, subsection C of the preamble, the commenters asks that the The accrediting entities will monitor the
above. regulations not permit a complaint to be compliance of accredited agencies and
filed with the Complaint Registry approved persons with this standard.
Section 96.68—Scope merely because it cannot be resolved The accrediting entities, therefore, will
1. Comment: One commenter believes with the agency, because this would be a check against retaliatory action
that the Department treats complaint transform an accrediting entity into an toward a complainant. The Department
review as a matter of private dispute appeal board. The commenter will act as another check against unfair
resolution, when it should focus, recommends that a complainant be treatment of complainants by an agency
instead, on the fundamental public required to seek out alternative or person. At each level of review, an
interests involved. The commenter resolutions, including arbitration and agency or person risks losing its
suggests that the Department add a new appeals, before filing a complaint with accreditation or approval if it takes steps
section to subpart J clarifying that the the Complaint Registry. to retaliate against complainants. There
Department has a non-delegable Response: The complaint system are enough safeguards built into the
responsibility to investigate issues of established by these regulations will complaint system that it is not necessary
fundamental public interest related to allow individuals to file complaints to change the requirement that
intercountry adoptions. with the Complaint Registry if they are complaints must first be filed with the
Response: The IAA creates a dissatisfied with the resolution of their agency or person.
regulatory scheme where accrediting complaints by the agency or person. 4. Comment: Several commenters
entities have primary responsibility for This does not, however, preclude the believe that § 96.41 of the proposed rule
monitoring the actions of accredited agency or person from offering appeals would limit use of the Complaint
agencies and approved persons, while or other dispute resolution procedures, Registry to birth parents, adoptive
the Department is responsible for and clients will be free to pursue such parents, and adoptees, and recommend
overseeing the accrediting entities. procedures before filing a complaint that the complaint process be expanded
Although a Complaint Registry is not with the Complaint Registry if they to allow other interested parties, such as
required by the IAA, the Department has wish. In addition, while resort to the health practitioners, social workers,
provided for the Complaint Registry in Complaint Registry will require the mental health providers, and non-
a manner consistent with this overall accrediting entity to investigate the governmental organizations (NGOs), to
file a complaint directly with the Complaint Registry in the course of its of timeliness in the complaint process.
Complaint Registry or the Department. ongoing diplomatic relations with One commenter is concerned that the
Response: Section 96.41 governs Convention countries. proposed grievance procedure will be
complaints to an agency or person, not ‘‘ineffectual, inadequate and self-
complaints to the Complaint Registry. If Section 96.70—Review of Complaints
interested,’’ because the agencies and
any individual is not satisfied with the About Accredited Agencies and
Approved Persons by the Complaint persons have no viable history of
resolution of his or her complaint by an handling grievances in a timely and
accredited agency’s or approved Registry
responsible manner.
person’s internal complaint procedure, 1. Comment: A commenter requests Response: The Department has
then he or she may file a complaint with further clarification on the proposed established complaint procedures and
the Complaint Registry. The Department Complaint Registry. The commenter standards because of expressed
has added a new § 96.69(c), however, to believes that effective complaint concerns that some agencies and
allow an individual who is not party to mechanisms rely on clearly delineated persons have not handled complaints
a specific Convention adoption case, but serial escalation structures, where effectively. Pursuant to § 96.41(c), all
who nonetheless has information about complainants, agencies/persons, or accredited agencies and approved
an agency or person, to complain regulators may appeal to successively persons must respond in writing to
directly to the Complaint Registry. higher levels of administrative (and complaints within 30 days of receipt
5. Comment: One commenter is where applicable) judicial review. Other and must provide expedited review of
concerned that the complaint commenters support the complaint complaints that are time-sensitive or
procedures of subpart J do not establish procedure as written. that involve allegations of fraud. If the
a workable system for the filing, Response: The Department agrees that
complaint cannot be resolved through
investigation, and resolution of effective complaint mechanisms require
the agency’s or person’s internal
complaints against agencies and multiple levels of review. These
complaint process, then the
persons. The commenter suggests that regulations outline a process by which
complainant may file a complaint with
the Department specify the process for complainants involved in specific cases
the accrediting entity through the
the timely investigation and resolution must file their complaints against an
Complaint Registry. Also under
of complaints and further requests that agency or person with that agency or
person. If the complaint cannot be § 96.69(b), if the complaint was resolved
agencies and persons have the
resolved through the agency’s or by an agreement to take action, but the
opportunity to present evidence and
person’s internal complaint process, the primary provider, agency, or person
receive proper notice of pending
complainant may file a complaint with failed to take the promised action
complaints against them.
Response: Subpart J outlines the the accrediting entity through the within thirty days of agreeing to do so,
general process for making, Complaint Registry pursuant to § 96.70. the complaint may be filed with the
investigating, and resolving complaints The Complaint Registry will make accrediting entity through the
about accredited agencies and approved complaints available to the accrediting Complaint Registry. Finally, § 96.71 also
persons. Each accrediting entity will be entity and to the Department. If an requires that the accrediting entity
responsible for establishing written accrediting entity’s investigation reveals maintain procedures, including
procedures for recording, investigating, that an agency or person is not in deadlines, for taking action upon
and acting upon complaints, that are substantial compliance with these complaints it receives from the
consistent with this subpart. The regulations, the accrediting entity can Complaint Registry. This approach
accrediting entity’s procedures must be take an adverse action. The Department should be given a chance to work before
approved by the Department. may suspend or cancel the accreditation further, more onerous, requirements are
Accrediting entities will make or approval if it finds that an agency or imposed on the assumption that
information about their Department- person is substantially out of agencies and persons will not resolve
approved complaint procedures compliance with the standards in complaints efficiently and effectively.
available upon request, and the subpart F and that the accrediting entity 3. Comment: A commenter requests
Department will post information about has failed or refused, after consultation that the Department adopt safeguards to
using the Complaint Registry on the with the Department, to take action. We screen out spurious or malicious
Department’s Web site. believe that these complaint procedures complaints and to protect against
6. Comment: A commenter suggests and enforcement steps provide enough manipulation of the complaint process.
that the Department establish a neutral levels of review to allow appropriate Response: The Department believes
fact-finding tribunal to investigate and ‘‘escalation’’ and to enforce IAA that the constraints on filing complaints
document alleged adoption abuses and compliance without being unduly with accrediting entities will serve this
to implement the Convention as a cumbersome or too slow. safeguard function. In addition, once an
mechanism to resolve complaints and 2. Comment: A commenter accrediting entity receives a complaint
disputes between party countries. recommends that a complainant who is from the Complaint Registry under
Response: With regard to alleged unsatisfied with the outcome of his or § 96.70(b)(1), it will have authority to
adoption abuses by agencies and her complaint after a period of 30 days address spurious or other meritless
persons, the courts will serve as a be permitted to file directly with the complaints appropriately, and will
‘‘neutral tribunal’’ for determining Complaint Registry. The commenter share information publicly only about
whether adverse actions are appropriate. also recommends amending the complaints against agencies or persons
With regard to disputes with other provisions to allow a complainant to file that have been substantiated, pursuant
countries, the Department, as Central with the Complaint Registry if a dispute to § 96.92(a).
Authority, will address them as has not been resolved within 60 days, or 4. Comment: A commenter supports
appropriate; the mechanisms for some other established time limit the creation of the Complaint Registry.
resolving such issues through sufficient to weed out frivolous It encourages the Department to
diplomacy are outside of the scope of complaints and to address complaints consider following Norway’s example
these regulations. The Department will that can be resolved amicably. Another by making the Complaint Registry an
use information collected by the commenter also stresses the importance ombudsman service.
Response: The United States has Complaint Registry, information about entity, after consultation with the
followed a different model for the functions and processes of the Department, to refer to a State licensing
implementation of the Convention, with Complaint Registry, as well as contact authority or appropriate law
the Department and accrediting entities information, will be posted on the enforcement authorities substantiated
having functions as provided in the Department’s website. complaints that involve conduct in
IAA. The Complaint Registry is 7. Comment: A few commenters want violation of Federal, State, or local law.
consistent with that structure. the Complaint Registry housed with the The Department has also revised
5. Comment: One commenter thinks Federal Trade Commission (FTC). § 96.77(d) to require reporting to the
that the Complaint Registry should be Response: The IAA gives the appropriate State licensing authority of
easily accessible to potential Department and its designated any adverse action that changes the
complainants by telephone, postal mail, accrediting entities the responsibility for accreditation or approval status of an
or electronic mail. Another commenter all accreditation and approval functions. agency or person. See also comment 1
suggests the Complaint Registry should The Complaint Registry is not provided on § 96.77.
be available online. for by the IAA, but is being provided for 10. Comment: One commenter states
Response: The Department agrees that by the Department in its discretion to that the funding for the Complaint
it is important that the Complaint assist the accrediting entities and the Registry should come from fees levied
Registry be easily accessible to potential Department in performing their by the Department. Others want the
complainants as well as efficient, but oversight functions under the IAA. Department to fund the Complaint
also believes that the individuals While section 102(c) of the IAA Registry. Others want the provision
making complaints must also be held explicitly states that the Department’s permitting accrediting entities to collect
initially responsible for making them in functions may not be delegated to any and remit fees for the Complaint
writing, not over the telephone. While other Federal agency, the Department Registry deleted. Other commenters
the administrative details on how to notes that nothing would preclude the state that the fees for the Complaint
access the Complaint Registry are not FTC from undertaking an investigation Registry should not be levied
suitable for incorporation into these of an adoption service provider if the collectively and that the cost of
regulations, they will be posted on the FTC had jurisdiction to do so under its complaints should be borne exclusively
Department’s website, and the public own authorizing legislation (e.g., for by the agency or person in question.
will be able to access the Complaint false advertising). Commenters would prefer that
Registry through multiple media. 8. Comment: One commenter asks information on fees be clear.
6. Comment: Numerous commenters that the Department provide some Response: The Department agrees that
ask how the Complaint Registry will be method to ensure that agencies and the Complaint Registry must be
set up. Others ask who will have persons keep records of complaints adequately funded. We therefore have
ultimate oversight over the Complaint against them and provide factual retained the provisions that give us the
Registry. Other commenters want to information about those complaints to discretion on how to fund the
know if the Complaint Registry will be any individual who requests it. Complaint Registry. The Complaint
established within the Department. Response: Pursuant to § 96.41, Registry will assist both the Department
Some commenters prefer that its precise accredited agencies and approved and the accrediting entities, each of
functions be detailed in an agreement persons are required to keep records of which has authority under the IAA to
with the Department. complaints against them, and to provide charge fees for its functions. How the
Response: The Department no longer reports to the accrediting entity and the Complaint Registry will actually be
contemplates that the Complaint Department on the complaints they funded will depend on the overall costs
Registry will be an independent entity received and how they were resolved. In of operating it, the availability of
with which the Department will have an addition, § 96.92 requires accrediting appropriated funds, and the proper
agreement. Rather it will be a system entities to maintain written records allocation of costs between the
established by the Department to assist documenting complaints against Department and the accrediting entities.
the accrediting entities and the accredited agencies and approved 11. Comment: One commenter
Department in their oversight functions. persons, and steps taken to resolve recommends that every complaint be
The relevant sections in subpart J, complaints. If a member of the public forwarded to a designated accrediting
§§ 96.68–71, have been revised so that a inquires about complaints against a entity for review.
party to an adoption case with a particular agency or person, the Response: The Complaint Registry
complaint against an agency or person accrediting entity must provide will make complaints available to the
may file it with the Complaint Registry information on substantiated accrediting entity and the Department.
after first seeking to resolve it with the complaints. The Department anticipates that all
agency or person. The Complaint 9. Comment: A commenter that is a properly filed complaints against
Registry will receive and maintain State licensing authority suggests that accredited agencies and approved
information on complaints, and track referrals be made by the accrediting persons that raise an issue of
the outcome of complaints. Addressing entity to the applicable State licensing compliance with the Convention, the
the complaints will be the responsibility authorities when complaints involve IAA, or the regulations implementing
of the accrediting entities and, in some agencies or persons who are also subject the IAA will be forwarded to the
circumstances, the Department. Every to State monitoring. This would appropriate accrediting entity, with the
accredited agency or approved person facilitate a close working relationship possible exceptions of sensitive law
will be required to give information to and coordination between the enforcement matters and complaints
clients about their own complaint accrediting entities and State licensing raised by government officials or a
procedures as well as contact authorities. foreign Central Authority directly with

information for the Complaint Registry Response: The Department agrees that the Department pursuant to § 96.69(d).
pursuant to § 96.41(a). communication between accrediting Even if an accrediting entity is not given
Subpart J describes the general duties entities and State licensing authorities is a particular complaint to review
and functions of the Complaint Registry. important. The Department has revised directly, it will be informed of all such
Once the Department has set up the § 96.72(b) to require the accrediting complaints that are filed against an
agency or person that it has accredited temporary accreditation, or suspension, have familiarity with relevant laws. The
or approved. In addition, pursuant to cancellation, or refusal to renew Department does not think it necessary
§ 96.41, accredited agencies and accreditation or approval, or any to specify in these regulations exactly
approved persons are required to debarment. what evaluators must know about
provide the accrediting entity and the Section 96.71(d) of the final rule relevant laws. The Department wants to
Department with reports on the requires that the accrediting entity enter leave flexibility in the regulations to
complaints they received and how they information on the outcome of allow accrediting entities to find and
were resolved. complaint investigations into the use the people they believe will be most
12. Comment: A commenter Complaint Registry established by the qualified for the job of evaluating
recommends that the Department add Department. The FOIA and its agencies and persons.
criteria to the regulations specifying the exceptions, along with other applicable
process for submitting complaints Federal law such as the Privacy Act, Subpart K—Adverse Action by the
against the Complaint Registry. It will apply to this information to the Accrediting Entity
suggests that such complaints be extent that it constitutes a Department Subpart K is organized in the same
handled in the same way complaints record. way as in the proposed rule, and
about accrediting entities will be includes § 96.74 (Scope); § 96.75
Section 96.72—Referral of Complaints (Adverse action against accredited
handled.
Response: The public may alert the to the Secretary and Other Authorities agencies or approved persons not in
Department, Bureau of Consular Affairs, 1. Comment: One commenter thinks substantial compliance); § 96.76
of any dissatisfaction it has with the that the regulations limit reports to the (Procedures governing adverse action by
operation of the Complaint Registry. Department by an accrediting entity to the accrediting entity); § 96.77
Because the Department no longer complaints that demonstrate a pattern of (Responsibilities of the accredited
contemplates that the Complaint serious, willful, grossly negligent, or agency, approved person, and
Registry will be an independent entity, repeated failures to comply with the accrediting entity following adverse
but rather that it will be a system standards of subpart F. The commenter action by the accrediting entity); § 96.78
established by the Department to assist requests that an accrediting entity report (Accrediting entity procedures to
the Department and the accrediting every complaint to the Department and terminate adverse action); § 96.79
entities, the Department does not make the investigation public. (Administrative or judicial review of
anticipate that any procedures for filing Response: The regulations do not adverse action by the accrediting entity);
complaints against the Complaint limit the reporting requirements of an and § 96.80 (Reserved).
Registry will be necessary. accrediting entity to the serious The Department made a number of
infractions listed in § 96.72. Pursuant to revisions to §§ 96.76—96.79 of this
Section 96.71—Review of Complaints § 96.93(a)(4), accrediting entities must subpart, which are discussed below and
Against Accredited Agencies and make semi-annual reports to the at section II, subsection C of the
Approved Persons by the Accrediting Department that summarize, among preamble, above. Many of these
Entity other things, all substantiated revisions clarify the options that are
Comment: One commenter asks if the complaints against accredited agencies available to an agency or person that is
notifications of the outcome of and approved persons and the impact of faced with an adverse action. A number
complaint investigations made pursuant such complaints on their accreditation of others relate to the transfer of
to § 96.71(c) (which in the proposed rule or approval status. As well, under Convention cases and adoption records.
would have required notifications to the § 96.71, the accrediting entity is
complainant, the Complaint Registry, Section 96.75—Adverse Action Against
required to enter information into the Accredited Agencies or Approved
and to any other entity that referred Complaint Registry about the outcomes
information), will be available to the Persons Not in Substantial Compliance
of investigations and actions taken on
public through a FOIA request. complaints. This information then will 1. Comment: A commenter requests
Commenter believes that such be available to the Department. that the Department specify whether
information will help the public protect As well, § 96.92 does require an imposing the adverse action of
itself and make informed decisions. accrediting entity to respond to public suspension means that an agency or
Response: The Department has inquiries regarding substantiated person loses accreditation or approval
ensured, in subpart M of these complaints against accredited agencies and must transfer cases. If the purpose
regulations, that the public may obtain or approved persons, disclosing the of suspension is to allow an entity a
information about the outcome of an status and nature of the complaint. The short period of time in which to take
accrediting entity’s investigations into a public, therefore, has access to corrective action to comply with
complaint. Section 96.92(a) requires an information about complaints against standards, the commenter recommends
accrediting entity to verify, upon agencies and persons. the category be renamed ‘‘probation,
inquiry from a member of the public, 2. Comment: One commenter suggests with required corrective action’’ and not
whether there have been any that the regulations should require include a requirement to transfer cases
substantiated complaints against an accrediting entities to have an and records. Another commenter echoes
accredited agency or approved person investigator familiar with relevant laws, the suggestion of a probationary period,
and, if so, to provide information about as well as Section 501(c) of the Tax recommending a one-time, three-month
the status and nature of the Code, on retainer to investigate probationary period. The commenter
substantiated complaint. Thus, members complaints. also states that classifying corrective
of the public may learn the outcome of Response: Pursuant to § 96.24(a), action as an adverse action, as § 96.75(b)
an investigation that resulted in a accrediting entities must use evaluators does, is inconsistent with the typical
substantiated complaint against an that have expertise in intercountry use of the term ‘‘corrective action;’’ this
accredited agency or approved person. adoption, standards evaluation, or commenter believes that requiring
Section 96.91(b) also requires an management or oversight of a child corrective action is typically a precursor
accrediting entity to explain to the welfare organization. Evaluators with to a decision to impose a penalty. These
public the reasons for any withdrawal of this type of expertise are presumed to commenters also state that there is
insufficient due process for agencies or through 96.79 for a summary of agencies or persons in egregious
persons that are subject to adverse comments on these sections, and the circumstances, as specified in section
actions. Other commenters support the Department’s detailed responses related 204(c). Subpart L of the rule contains a
regulations as stated. to options to protest adverse actions. number of provisions incorporating IAA
Response: The Department is not 2. Comment: A commenter objects to section 204’s guidelines for
renaming, removing, or creating any accrediting entities imposing sanctions Departmental oversight of agencies and
category of adverse action in response to regarding specific cases or specific persons.
these comments, because section Convention countries as described in
202(b)(3) of the IAA specifies the types § 96.75(e). Other commenters submitted Section 96.76—Procedures Governing
of adverse action an accrediting entity conflicting comments about whether Adverse Action by the Accrediting
may take as including requiring accrediting entities should be allowed to Entity
corrective action; imposing sanctions; determine whether an agency or person
and refusing to renew, suspending or has substantially complied with Comment: Several commenters
canceling accreditation or approval. The standards for accreditation or approval. recommend that the regulations clearly
IAA does not specify ‘‘probation’’ as an Other commenters state that the state that accrediting entities should be
adverse action. If an accrediting entity Department should develop the allowed to take adverse action without
requires corrective action or imposes procedures used by accrediting entities notice only in the case of ‘‘clear and
sanctions—two of the adverse actions to impose adverse actions. Several convincing evidence of an imminent
specified by the IAA—and yet remains commenters state that § 96.76 does not danger to a child.’’ Other commenters
concerned about the agency’s or properly reflect section 204 of the IAA, assert that if an adverse action is taken
person’s compliance with the standards regarding the imposition of adverse without notice, the accrediting entity
in subpart F, it may take one of the other actions, and suggest that the language of must allow the accredited agency or
types of adverse action provided for in the IAA be incorporated into the approved person an opportunity after
the IAA—affecting the accreditation or regulations to establish the standards for the notice is issued to provide
approval status of the agency or the imposition of adverse actions. information refuting that the adverse
person—and may require the agency or Response: To enforce the
action was warranted.
person to transfer any Convention cases accreditation and approval standards
or adoption records. laid out in subpart F of these Response: We have changed § 96.76 to
In response to the question on the regulations, the IAA gives both address the commenters’ concerns about
effects of suspension, we note that, per accrediting entities and the Department providing notice to agencies and
§ 96.77(b), ‘‘suspension’’ of the authority to impose adverse actions. persons and to ensure that it is
accreditation or approval will require an Section 202(b) of the IAA gives an consistent with the IAA. Section
agency or person to cease to provide accrediting entity authority to take 96.76(b) now provides that, before
adoption services in Convention adverse action when an agency or taking an adverse action, the accrediting
adoption cases and consult with the person is not in substantial compliance entity may advise the agency or person
accrediting entity to determine whether with the applicable requirements, and of the deficiencies that may warrant
to transfer its Convention cases and gives accrediting entities substantial adverse action; provide an opportunity
adoption records. In the case of flexibility in determining which adverse for the agency or person to take
cancellation of accreditation or action is appropriate. The Department corrective action; and recognize
approval, however, Convention cases believes § 96.75 accurately reflects this
demonstrated compliance. This section
and adoption records must be flexibility in the IAA.
We are not removing the regulatory also provides that, if the accrediting
transferred to other accredited agencies,
approved persons, or State archives, provisions that permit accrediting entity takes the adverse action without
according to the plans required by entities to impose sanctions related to a first providing notice, the accrediting
§§ 96.33(e) and 96.42(d). particular case or for a specific entity must subsequently provide notice
In response to commenters’ concerns Convention country. Accrediting and an opportunity for the agency or
about the due process available to entities will be in the best position to person to refute that the adverse action
agencies or persons facing adverse learn of problems in specific cases or was warranted. Thus the affected agency
actions, the Department notes that Convention countries and to determine or person is always given an
§ 96.76(b) of the rule provides that, prior if corrective actions are needed and opportunity to be heard, either before or
to taking adverse action, the accrediting what adverse action is appropriate. The after adverse action is taken, and the
entity may advise the agency or person methods developed by the accrediting accrediting entity is given the flexibility
of the deficiencies that may warrant an entities to assess substantial to act immediately if the circumstances
adverse action, provide an opportunity compliance, pursuant to § 96.27, may so warrant. The Department thinks it
to take corrective action, and recognize also aid the accrediting entities in important to leave the accrediting
demonstrated compliance as curing the determining which adverse actions are entities the discretion to balance the
deficiency. If the accrediting entity does appropriate for particular situations. interests and risks at stake for each
not communicate with the agency or Finally, we believe this provision is factual scenario, in determining at what
person prior to taking the adverse consistent with section 204(b) of the
point to allow the affected agency or
action, § 96.76(b) requires the IAA, which only requires the
person an opportunity to be heard. We
accrediting entity subsequently to allow Department to suspend or cancel
have removed from the rule the example
the agency or person to demonstrate that accreditation or approval in instances in
the adverse action was unwarranted. We which it finds that an agency or person given in the parenthetical, to avoid any
note, too, that agencies and persons may is substantially out of compliance with suggestion that the example is the sole
seek judicial review in Federal court of the standards in subpart F and that the circumstance in which prior notice
adverse actions in accordance with the accrediting entity has failed or refused, would not be required.
IAA. Section 96.79 incorporates the after consultation with the Department,
IAA’s provisions on judicial review. to take appropriate enforcement action.
Please see the discussion on §§ 96.76 The Department may also debar
Section 96.77—Responsibilities of the cancellation but they will have to keep accrediting entity may withdraw, or
Accredited Agency, Approved Person, the accrediting entity informed about choose not to impose, an adverse action
and Accrediting Entity Following the process. based on this information. The IAA also
Adverse Action by the Accrediting In the event that the agency or person provides for Federal judicial review of
Entity is unable to transfer its Convention an accrediting entity’s adverse action.
cases and/or adoption records In addition, the Department has
1. Comment: One commenter
consistent with these plans, the revised § 96.78 to clarify the
recommends that an accrediting entity
Department has amended §§ 96.77(b) responsibilities of the accrediting entity
be required to notify the applicable
and (c) to require the accrediting entity to provide an opportunity to seek
State approval or licensing authority of
to inform the Department of the termination of an adverse action.
an adverse action against an accredited
breakdown in the transfer plans, and to Section 96.78(a) now states that an
agency or approved person, to enhance
then assist the Department in accrediting entity must maintain
coordination between accrediting
coordinating efforts to help the agency internal petition procedures, approved
entities and State licensing authorities. or person with the transfer of pending by the Department, to give agencies and
Response: The Department agrees
Convention cases and adoption records. persons an opportunity to challenge
that, in order to comply with these
Such coordination will include efforts adverse actions on grounds that the
regulations, accrediting entities will
to identify other accredited agencies or deficiencies underlying the adverse
have to communicate well with State
approved persons to assume action have been corrected. The
licensing authorities. Therefore, the responsibility for the cases. This accrediting entity must now inform the
Department is adding to § 96.77(d) the requirement ensures that the accrediting agency or person of these procedures at
requirement that accrediting entities entity contributes its institutional the same time that it informs them of
report to the appropriate State licensing knowledge about the agency or person, the adverse action itself. To ensure
authority, in addition to the Department including knowledge related to the consistency with the fact that the IAA
(as was required by the proposed rule), agency or person’s transfer plan, to the provides no other right to review of
any adverse actions they take that process of transferring cases and adverse actions at the accrediting entity
changes the accreditation or approval records. This requirement also compels level, the provision now also makes
status of an agency or person. This the accrediting entity to remain explicit that the accrediting entity is not
notification requirement will be involved in overseeing case transfers required to maintain any other
addressed more fully in the accrediting that result from its adverse actions. It procedures to terminate or review
entity’s agreement with the Department. should not, however, put the accrediting adverse actions, and may make such
2. Comment: Several commenters entity in the position of independently procedures available only with the
recommend that the Department clarify assuming individual case transfer consent of the Department.
the guidelines for the transfer of responsibilities and/or independently In response to commenters’ concerns
Convention cases due to suspension or selecting alternate accredited agencies that this section requires an agency or
cancellation of accreditation or and/or approved persons to which cases person to assume ‘‘guilt’’ before
approval. Many commenters ask will be transferred. challenging an adverse action, the
whether prospective adoptive parent(s) Department has added § 96.78(f) to
will have a role in the decision to Section 96.78—Accrediting Entity clarify that nothing in this section
transfer their case. Another commenter Procedures To Terminate Adverse would prevent an accrediting entity
thinks that accrediting entities should Action from withdrawing an adverse action if it
not play any role in determining Comment: Several commenters concludes that such an action was based
whether and how to transfer pending suggest that an agency, person, or other on a mistake of fact or other error. Thus,
cases or records, suggesting that it interested party should have the an agency or person that believes it has
would not be appropriate for the opportunity to challenge the accrediting done nothing wrong may ask an
accrediting entity to be involved in entity’s interpretation of a regulation or accrediting entity to withdraw an
handling of individual cases or, given law. Further, some commenters express adverse action as unfounded or based
the financial benefit associated with the concern that the provision in § 96.67 on a factual error. Since this is not a
transfer, in selecting the agency or that requires an agency or person to formal administrative remedy, but just
person to receive transferred cases. petition an accrediting entity to an option for conducting business that
Response: The Department is not terminate an adverse action on the remains available, this approach could
eliminating the requirement that after grounds that the deficiencies cited have be taken at any time. While the agency
cancellation and, in some instances after been corrected before seeking judicial or person will have no formal ‘‘right’’ to
suspension, an agency or person must review in effect requires an agency or review, good business practices will
transfer its Convention cases under the person to admit guilt. The commenters presumably result in the accrediting
oversight of the accrediting entity. recommend that the Department entity in some cases choosing to change
Under §§ 96.33(e) and 96.42(d), the establish an administrative mechanism its prior decision. Alternatively, the
agency or person must have plans for through which an agency or person can agency or person may choose to
transferring Convention cases and challenge an adverse action it believes challenge the action in district court. In
adoption records if it ceases to be able was unfounded or taken improperly. contrast, an agency or person who
to provide adoption services. In the case Response: The Department notes that wishes to demonstrate that it has taken
of cancellation, the final rule requires this rule provides several opportunities corrective action to remediate an
agencies and persons to execute these for agencies or persons to challenge the admitted deficiency may petition the
plans. In the case of suspension, the accrediting entity’s interpretation of a accrediting entity to terminate the
agency or person must consult with the regulation or law. Under § 96.76(b), as adverse action under the procedures
accrediting entity about whether to do revised, an accrediting entity must required under § 96.78(a).
so. Agencies and persons will have the allow an accredited agency or approved Please also see the responses to
main responsibility for working with person the opportunity to submit comments on §§ 96.79 and 96.84,
families when transferring their information refuting that an adverse related to review of accrediting entity
Convention cases after suspension or action would be or is warranted. The decisions.
Section 96.79—Administrative or accreditation or approval. The decisions. The relief sought in an APA
Judicial Review of Adverse Action by the Department does not want to encourage action is generally reversal or
Accrediting Entity agencies and persons to ‘‘shop around’’ modification of an administrative
1. Comment: Several commenters to different accrediting entities instead action, and money damages are not
raise concerns over the limits of judicial of bringing their services into available. The statement that, for the
and/or administrative review of adverse compliance with these regulations. In purposes of challenges to adverse
action. Many commenters request that addition, the Department wishes to actions, an accrediting entity will be
the Department create guidelines for the avoid the drain on the limited resources considered a 5 U.S.C. 701 agency, brings
imposition of adverse actions that of all accrediting entities that would all accrediting entities (private nonprofit
result if a second accrediting entity or public) into the scope of ‘‘agencies’’
would include notices, standards of
would be required to go through the against whom APA actions may be
proof, hearings, an internal review
work of gathering documentation, doing brought. Thus, for example, 5 U.S.C.
process, and an appeal process to ensure
site visits, and interviewing people in 706(2)(A) would allow a Federal court
due process for accredited agencies or
connection with an evaluation of an to set aside an adverse action that had
approved persons.
agency or person that another been taken ‘‘in excess’’ of an accrediting
Response: Under § 96.78(a),
accrediting entity has already evaluated. entity’s authority under the IAA.
accrediting entities are required to 3. Comment: One commenter thinks 5. Comment: Two commenters
maintain internal procedures, approved that § 96.79(c), which requires an recommend that the Department include
by the Department, to allow agencies or accredited agency or approved person to a provision for alternative dispute
persons to petition for termination of seek Federal judicial review of an resolution, given the potential financial
adverse actions on the grounds that the adverse action through a Federal district burden of Federal court litigation.
deficiencies necessitating the adverse court, will hinder it from taking on According to one of the commenters,
action have been corrected. This process adoption cases with extenuating this could be accomplished by allowing
for petitioning to terminate an adverse circumstances or special needs children. accrediting entities to utilize dispute
action on these limited grounds is the Response: The provisions for judicial resolution clauses in their contracts
only internal review procedure set out review in the IAA and § 96.79(c) are with agencies or persons seeking
in the IAA. If, after exhausting its intended as a benefit, not a burden, to accreditation or approval.
remedies through the internal petition agencies and persons, to ensure that Response: Section 202(c)(3) of the
process, where applicable, an agency or they are treated fairly when subjected to IAA expressly authorizes Federal
person wishes to appeal the final adverse actions. Sections 96.76 and judicial review of certain enumerated
decision of the accrediting entity, it may 96.78 also now clearly provide adverse actions taken by an accrediting
do so in Federal court as provided opportunity for an agency or person to entity, and section 202(c)(2) expressly
under the IAA. We have modified seek reversal of an adverse action prohibits administrative review of an
§ 96.79(a) to reflect these parameters in without going to Federal court, which adverse action by an accrediting entity
a way that is consistent with the IAA. may address the commenter’s apparent (except to the extent review is provided
The Department has also revised concern with the time and cost of under section 202(c)(1) to determine if
§ 96.79(b) to emphasize that the IAA’s Federal litigation. This provision should deficiencies have been corrected). The
limitation on administrative review of not in any way discourage agencies or IAA is silent on whether accrediting
adverse actions by an accrediting entity persons from performing adoption entities and agencies and persons may
in section 202(c)(3) of the IAA services for special needs children in agree to alternative dispute resolution
necessarily applies to both nonprofit Convention countries. procedures. We are not including in the
accrediting entities and public domestic 4. Comment: One commenter requests regulations a provision that permits
authorities that are designated as that the Department explain the designated accrediting entities to
accrediting entities. significance of IAA section 202(c)(3) of mandate that agencies or persons agree
2. Comment: Some commenters the IAA, which provides for judicial to binding arbitration, or agree to use
maintain that the scope of judicial review of adverse actions in Federal other alternative dispute resolution
review after a denial of accreditation or courts under 5 U.S.C. 706 of the mechanisms; such an approach could
approval as set forth in § 96.79(b) is Administrative Procedure Act (APA), lead to agencies or persons feeling
unreasonably narrow. One commenter and treats an accrediting entity as an coerced. By the same token, we are not
suggests that, if an agency or person is ‘‘agency’’ under 5 U.S.C. 701 for the ruling out the option that accrediting
denied accreditation or approval, the purpose of this review. The commenter entities and agencies and persons may
agency or person should be allowed to suggests that its ability and willingness mutually agree to alternative dispute
apply to another accrediting entity. to act as an accrediting entity will be mechanisms with respect to a particular
Response: The IAA provides for seriously impacted by this provision, dispute.
judicial review, in a United States along with that of other private
district court, of adverse actions, organizations and public authorities. Subpart L—Oversight of Accredited
including requiring corrective action, Response: The right provided in Agencies and Approved Persons by the
imposing sanctions, or suspension of, section 202(c)(3) of the IAA to challenge Secretary
cancellation of, or refusal to renew adverse actions in Federal courts is an Subpart L is organized in the same
accreditation or approval. As discussed express exception to section 504 of the way as in the proposed rule, and
in the response to the comment on IAA’s mandate that the Convention and includes § 96.81 (Scope); § 96.82 (The
§ 96.59 in subpart G, denial of the IAA shall not be construed to create Secretary’s response to actions by the
accreditation or approval is not a private right of action, except where accrediting entity); § 96.83 (Suspension
included within the scope of such otherwise provided. Section 706 of the or cancellation of accreditation or
review. APA sets out the legal standards by approval by the Secretary); § 96.84
The Department has not changed the which a Federal court may review (Reinstatement of accreditation or
regulation to permit agencies and decisions made by agencies, as defined approval after suspension or
persons to apply to a different in the APA, and the procedures which cancellation by the Secretary); § 96.85
accrediting entity after being denied the agencies used to make those (Temporary and permanent debarment
by the Secretary); § 96.86 (Length of question has not had an opportunity to tracks these provisions of IAA section
debarment period and reapplication contest the decision from the 204(b)(2), as well as its provisions on
after temporary debarment); § 96.87 accrediting entity. To ensure that the terminating a suspension. The comment
(Responsibilities of the accredited rights of agencies and persons are nevertheless prompted the Department
agency, approved person, and protected, commenters request creation to add language to § 96.84(a) to specify
accrediting entity following suspension, of a detailed appeal process with notice the narrow grounds on which the
cancellation, or debarment by the and hearing. agency or person can petition the
Secretary); § 96.88 (Review of Response: In order for the Hague Department for relief—namely, that
suspension, cancellation, or debarment Permanent Bureau to have an accurate
deficiencies necessitating the
by the Secretary); and § 96.89 list of accredited agencies and approved
suspension or cancellation have been
(Reserved). persons, consistent with our obligations
We have modified § 96.83(a) and under Article 13 of the Convention, the corrected. Moreover, we note that
§ 96.85(b) to clarify that the Department Hague Permanent Bureau must be § 96.84(a) requires that an agency or
alone has the discretion to determine notified of changes in status that result person authorized to reapply for
whether the conditions for taking action from adverse actions, even when the accreditation or approval generally must
under §§ 96.83 and § 96.85 have been adverse action has been taken without reapply to the accrediting entity that
satisfied. In addition, the Department prior notice. Therefore we are not handled its prior application, to ensure
has added new §§ 96.85(b)(2)(ii) and altering § 96.82(b) in response to this that the agency or person will be subject
(iii), incorporating directly the comment. We note that §§ 96.84 and to rigorous evaluation.
provisions of section 204(e) of the IAA, 96.86 correspondingly require the The Department has also added
which specifies as grounds for Department to notify the Hague § 96.84(b) to make clear that nothing in
debarment certain egregious failures to Permanent Bureau, as appropriate, this section prevents the Department
comply with home study requirements. when an adverse action has been from withdrawing a cancellation or
Other changes, in particular changes to terminated or withdrawn. For a suspension upon a finding that the
§§ 96.84, 96.86, and 96.87 paralleling discussion of the issue of notice in the action was based on a mistake of fact or
changes made in subpart K, are context of adverse action taken by an
otherwise in error. Please see also the
described below. accrediting entity, please see the
discussion in response to comments on
response to the comment on § 96.76.
Section 96.81—Scope § 96.78.
1. Comment: Two commenters Section 96.83—Suspension or
Cancellation of Accreditation or Section 96.85—Temporary and
recommend that oversight of agencies Permanent Debarment by the Secretary
and persons should be moved from Approval by the Secretary
accrediting entities and the Department Comment: Commenters suggest that Comment: The only comments
to the FTC. A commenter is concerned the third provision in § 96.83(b), stating specific to § 96.85 noted agreement with
that the Department lacks expertise and that the Department may suspend or the debarment provisions and the
interest in overseeing agencies and cancel accreditation or approval if such language that defines when the
persons. action ‘‘will protect the interests of Department is to take action for
Response: The explanation given in children’’ should be listed first, ahead of debarment.
the response to comment 7 on § 96.70 furthering U.S. foreign policy or
above, also applies to this comment. national security interests and Response: No response is required to
The Department is committed to protecting the ability of U.S. citizens to these comments; as noted in the
identifying and working with qualified adopt children under the Convention. introduction to the discussion of
accrediting entities to oversee agencies Response: The listing of grounds on subpart L, § 96.85 now incorporates the
and persons. which the Department may act is not provisions of section 204(e) of the IAA
2. Comment: One commenter suggests intended to convey their relative on debarment for certain egregious
that the Department create a centralized importance, or any sequence in which failures to comply with home study
online database with information on the the grounds will be considered. The requirements.
accreditation status of all agencies and Department, nevertheless, made the
persons. suggested change. A key objective of Section 96.86—Length of Debarment
Response: Accrediting entities are both the Convention and the IAA is to Period and Reapplication After
required to maintain and make available ensure that standards are in place that Temporary Debarment
to the public information on accredited protect the best interests of children. Comment: The comments on § 96.78
agencies and approved persons, such as
Section 96.84—Reinstatement of expressing concern that the proposed
their specific accreditation/approval
Accreditation or Approval After rule would force an agency or person to
status. (See §§ 96.91 and 96.92). The
Department will make available, on its Suspension or Cancellation by the admit guilt before challenging an
website, the identities of the accrediting Secretary adverse action were also made with
entities. Comment: One commenter opposes respect to this section.
the provision allowing an agency or Response: The Department has added
Section 96.82—The Secretary’s person to apply for reinstatement of § 96.86(c) to clarify that this section
Response to Actions by the Accrediting accreditation or approval.
Entity does not prevent the Department from
Response: Section 204(b)(2) of the withdrawing a debarment if it was based
Comment: Several commenters IAA explicitly allows applications for on factual or other error. Please see also
believe that imposing adverse actions on reinstatement of accreditation or the discussion responding to comments
agencies and persons without approval by agencies or persons in on § 96.78.
notification is problematic. They think situations in which the Department is
that § 96.82(b) allows the Department to satisfied that the deficiencies that
inform the Hague Permanent Bureau of necessitated cancellation have been
an adverse action when the party in corrected. Section 96.84 of the rule
Section 96.87—Responsibilities of the includes § 96.90 (Scope); § 96.91 disclosure requirements of § 96.91. The
Accredited Agency, Approved Person, (Dissemination of information to the Department expects to address this issue
and Accrediting Entity Following public about accreditation and approval in the agreements with the accrediting
Suspension, Cancellation, or Debarment status); § 96.92 (Dissemination of entities.
by the Secretary information to the public about Once the Convention has entered into
complaints against accredited agencies force for the United States, accrediting
Comment: Some commenters
and approved persons); and § 96.93 entities will be required to make
expressed concern about the case
(Reports to the Secretary about available to the public information
transfer provisions in the rule.
accredited agencies and approved about accredited agencies and approved
Response: As discussed above, the
persons and their activities); and § 96.94 persons on a quarterly basis, pursuant to
Department has modified § 96.87 to
(Reserved). § 96.91(a). Section 96.91(a) does not
reflect the fact that, if accreditation or Sections 96.92–96.93 have been
approval is cancelled, the plans prohibit accrediting entities from
revised in response to public comment, making such information available on a
required by §§ 96.33(e) and 96.42(d) will as described below. In addition, while
govern any transfer of Convention cases more frequent basis. The information
§ 96.91 of the proposed rule would have that accrediting entities will be required
and adoption records. As with § 96.77, required an accrediting entity to provide
the provision has been modified to to disclose to the public quarterly
a summary of the accreditation or includes the names and contact
require the accrediting entity to assist approval study of an agency or person
the Department in helping the agency or information for each agency and person
upon request, after further consideration it has accredited or approved and the
person to transfer its Convention cases of the burden and cost impact on
and adoption records if the agency or names of agencies and persons to which
accrediting entities, we have eliminated it has denied accreditation or approval
person is unable to transfer Convention this provision. We believe that the other
cases and adoption records as planned. that have not subsequently been
information accrediting entities are accredited or approved. Accrediting
Please see the response to comment 2 on required to give the public is sufficient
§ 96.77 for further explanation. entities will also have to provide the
to allow prospective adoptive parent(s) names of those who have been subject
Section 96.88—Review of Suspension, to make informed decisions, and to suspension, cancellation, or refusal to
Cancellation, or Debarment by the eliminating this requirement will assist renew accreditation or approval; those
Secretary in minimizing accreditation fees. who have had their temporary
Comment: Commenters express Section 96.91—Dissemination of accreditation withdrawn; or who have
concern about the absence of Information to the Public About been debarred, as well as any
administrative review and the Accreditation and Approval Status information specifically authorized in
possibility of ‘‘a few entities or 1. Comment: Several commenters writing by the accredited agency or
individuals being able to essentially suggest that information about approved person to be disclosed to the
shut down an agency with no recourse.’’ accreditation and approval status public.
Commenters request that a ‘‘full review should be posted on the Department’s In addition, upon request, accrediting
board’’ for the Department’s adverse website. One commenter also suggests entities will have to make available to
actions be put in place. that information be made available by e- the public confirmation of whether a
Response: The IAA does not provide mail upon request. specific agency or person has been
for administrative review of suspension, Response: Information about subject to suspension, cancellation,
cancellation or debarment by the accreditation and approval status will refusal to renew, or withdrawal of
Department, except to the extent that be available through the accrediting temporary accreditation or approval or
section 204(b)(2) of the IAA provides entities. The Department will have has been debarred, and a brief statement
that the Department may terminate a information about all accrediting of the reasons for the action. Upon
suspension or authorize re-application entities posted on its website. Also, the request, accrediting entities will also
for accreditation or approval if it is Department will send the names of have to confirm whether an agency or
satisfied that the deficiencies accredited agencies and approved person has a pending application for
underlying a suspension or cancellation persons to the Hague Permanent Bureau accreditation or approval and the status
of accreditation or approval have been for dissemination on its website. These of the application. Finally, once the
corrected. Reinstatement in such arrangements are consistent with the Convention has entered into force for
circumstances is provided for under respective roles of the accrediting the United States, accrediting entities
§ 96.84 of the rule, and the Department entities and the Department under the will be required to disclose information,
has modified § 96.88(a) to clarify the IAA. upon request, on substantiated
point that this is the only non-judicial 2. Comment: Commenters request that complaints under § 96.92.
review procedure available. Sections the Department clarify the scope and 3. Comment: One commenter suggests
96.84(b) and 96.86(c) have been added methods to be used to disclose that accredited agencies and approved
to clarify that the Department may information to the public regarding persons should provide information
withdraw a cancellation, suspension, or accredited agencies and approved required under subpart M to parent(s)
debarment if the Department concludes persons under § 96.91. One commenter immediately upon initiating a
that the action was based on a mistake further suggests that an accrediting relationship. Another commenter thinks
of fact or was otherwise in error. These entity be afforded the discretion to make that agencies or persons should be
provisions are consistent with the the information that it is required to required to disclose any adverse actions
overall structure of the IAA. make available on a quarterly basis or complaints directed against them to
under § 96.91(a), available on a more parent(s) before a referral of a child is

Subpart M—Dissemination and made, so that prospective adoptive
regular basis.
Reporting of Information by Response: The Department does not parent(s) can make an informed
Accrediting Entities believe that it is necessary to set out in decision regarding that agency or
Subpart M is organized in the same the regulation the methods which person. Another commenter supports
way as in the proposed rule, and accrediting entities may use to meet the the provision as written.
Response: The Department is not otherwise undue prejudice toward that applicants for temporary accreditation);
revising § 96.91 to apply to agencies and agency or person. Commenters § 96.101 (Notification of temporary
persons as well as to accrediting recommend that only information about accreditation decisions); § 96.102
entities. The purpose of this provision is substantiated complaints should be (Review of temporary accreditation
to allow clients, if they wish, to get made available to the public. decisions); § 96.103 (Oversight by
critical information from one source— Response: The Department has accrediting entities); § 96.104
the accrediting entities—instead of by revised § 96.92 to require reporting only (Performance standards for temporary
seeking information from each of substantiated complaints. The accreditation); § 96.105 (Adverse action
individual agency or person. We believe Department believes that requiring against a temporarily accredited agency
that requiring accrediting entities to accrediting entities to report to the by an accrediting entity); § 96.106
provide information to the public about public only substantiated complaints (Review of the withdrawal of temporary
accredited agencies and approved against an agency or person is sufficient accreditation by an accrediting entity);
persons will assist the public in making protection for potential clients. It will § 96.107 (Adverse action against a
informed decisions when choosing an also reduce the reporting burden on temporarily accredited agency by the
adoption service provider. Clients will, accrediting entities and may, therefore, Secretary); § 96.108 (Review of the
of course, also remain free to seek reduce the cost of accreditation or withdrawal of temporary accreditation
information directly from agencies and approval. by the Secretary); § 96.109 (Effect of the
persons. Section 96.93—Reports to the Secretary withdrawal of temporary accreditation
We note also that § 96.39 of subpart F by the Secretary); § 96.110
About Accredited Agencies and
sets forth standards on information (Dissemination and reporting of
Approved Persons and Their Activities
disclosure by agencies and persons to information about temporarily
the general public and to prospective Comment: One commenter accredited agencies); and § 96.111 (Fees
clients, and § 96.41 sets forth standards recommends that reports to the charged for temporary accreditation).
requiring agencies and persons to Department about accredited agencies The Department has made a number
provide information on complaint and approved persons should be made of changes to the provisions of subpart
procedures to clients. public because the information N to parallel changes made in the
4. Comment: A commenter contained would be useful to subparts of the rule that apply to
recommends adding a fourth provision prospective adoptive parent(s) who are accreditation and approval. As
under § 96.91(b) that requires that each evaluating those agencies and persons. described below, we have also removed
accrediting entity make available to Others are concerned about the cost and from § 96.103 language that was
individual members of the public upon burden of requiring accrediting entities duplicative of language in § 96.111, and
specific request any information to make quarterly reports to the have further clarified how fees may be
concerning a specific agency or person Department. charged for site visits.
except: (A) information identifying Response: Some of the information
prospective or actual adoptive parents, contained in an accrediting entity’s Section 96.95—Scope
birth parents or adoptees; (B) report to the Department will be Comment: One commenter believes
complaints which have been available to the public, upon request to that the temporary accreditation process
determined to be false or the accrediting entity, pursuant to goes against the intention of Congress
unsubstantiated; and (C) complaints §§ 96.91 and 96.92. We do not think it and does not address the needs of small
being investigated by the Complaint necessary or appropriate to include agencies for which the provision was
Registry or accrediting entity that were further provisions addressing when and intended. The commenter states that the
filed less than six months earlier. how any other portions of the IAA used the term ‘‘registration’’ to
Response: Requiring accrediting accrediting entities’ reports to the describe the ‘‘phase-in’’ process, which
entities to provide ‘‘any’’ information Department would be available to the would imply less time and expense than
concerning a specific agency or person public, because such disclosures would temporary accreditation.
would be too burdensome on be covered by Federal laws on access to Response: We have not changed the
accrediting entities. While subpart M is records and information. provisions on temporary accreditation
intended to help clients make informed In response to general concerns about because we believe they are consistent
decisions about accredited agencies and the potential impact of the reporting with both the IAA and the Convention.
approved persons, it only indirectly requirements on accreditation fees, we The IAA does use the term
furthers the main purpose of the IAA have modified § 96.93 so that the reports ‘‘registration’’ in the heading of the
and these implementing regulations, to the Department under § 96.93(a) are section on temporary accreditation, but
which is to ensure that agencies and required on a semi-annual rather than a it is clear that, regardless of what it is
persons comply with the Convention quarterly basis. called, the short-term transitional
and the IAA. Thus, we have not accreditation process is to be more than
Subpart N—Procedures and Standards a mere sign-up procedure. (Allowing
modified subpart M to impose such a
Relating to Temporary Accreditation agencies to conduct Convention
public reporting requirement on
accrediting entities. Subpart N is organized in the same adoptions based on a mere sign-up
way as in the proposed rule, and procedure would be difficult, if not
Section 96.92—Dissemination of includes § 96.95 (Scope); § 96.96 impossible, to justify as consistent with
Information to the Public About (Eligibility requirements for temporary the Convention.) The IAA criteria for
Complaints Against Accredited accreditation); § 96.97 (Application applying for temporary accreditation are
Agencies and Approved Persons procedures for temporary accreditation); less comprehensive than those required
Comment: Several commenters § 96.98 (Length of temporary for full accreditation, yet the statute still
believe that requiring the accrediting accreditation period); § 96.99 requires that an agency demonstrate
entity to disclose information on both (Converting an application for basic competency to perform
substantiated and unsubstantiated temporary accreditation to an Convention adoptions.
complaints against an agency or person application for full accreditation); The Department deliberately uses the
could promote rumors, speculation, or § 96.100 (Procedures for evaluating term temporary accreditation, rather
than ‘‘registration,’’ to highlight that Response: No response is required to ‘‘provided adoption services in fewer
temporary accreditation, as envisioned these comments. than 100 intercountry adoptions’’ in the
in the IAA, is a stepping-stone to full 2. Comment: One commenter states calendar year preceding entry into force
accreditation; temporary accreditation is that the current threshold for the of the Convention can be temporarily
meant to allow small agencies a short number of cases in which adoption accredited for a one year period (or for
period of time to gather the information services are performed by an agency a two year period, if performing
and resources necessary to achieve full seeking temporary accreditation does adoption services in fewer than 50
accreditation. Temporary accreditation not offer sufficient relief for small intercountry adoptions). As the
is not a permanent, ongoing status for agencies. Many commenters request that commenter correctly notes, ‘‘adoption
small agencies, but is available only as the threshold for temporary service’’ is defined in section 3 of the
the Convention first enters into force for accreditation be based solely upon the IAA, and is used throughout the IAA, to
the United States, and is a status limited number of Convention cases. Other include home studies. Accordingly, the
to, at most, two years. Eventually, small commenters want the threshold to be commenting agency is providing one of
agencies must meet the full raised to 200 cases for one year or 100 the six enumerated ‘‘adoption services’’
accreditation standards in subpart F to cases for two years of temporary in over 100 cases. Assuming these
provide adoption services in accreditation. services were provided by the agency in
Convention cases, or choose to provide Response: The threshold number of the calendar year preceding entry into
adoption services in Convention cases cases for temporary accreditation is force of the Convention, the agency
only as supervised or exempted established by section 203(c) of the IAA, would not qualify for temporary
providers. which provides that an agency can get accreditation.
The eligibility requirements for temporary accreditation for a period of The fact that such an agency cannot
temporary accreditation are more one year if it has ‘‘provided adoption qualify for temporary accreditation does
detailed than the broadly worded services in fewer than 100 intercountry not mean that it must pursue full
criteria in the IAA, but they are all adoptions in the preceding calendar accreditation to continue its work,
based in the statute. For example, year,’’ and for two years if it has however. After the Convention enters
section 203(c)(3)(E) of the IAA requires ‘‘provided adoption services in fewer into force, it could act as an ‘‘exempted
that an agency that wishes to get than 50 intercountry adoptions in the provider’’ in those cases in which the
temporary accreditation show that it preceding calendar year.’’ agency performs only home studies, and
‘‘has not been found to be involved in Consistent with the IAA, all it could act as a supervised provider in
any improper conduct relating to ‘‘intercountry adoptions,’’ will count those few Convention adoptions in
intercountry adoptions.’’ The toward the threshold number. Prior to which it performs additional adoption
Department’s regulations at § 96.96(a)(5) entry into force of the Convention for services.
describe what agency behavior would be the United States, no Convention The Department considered whether,
considered ‘‘improper conduct’’ adoptions would have been performed notwithstanding its plain language,
including, (i) a suspension of its State in the United States, regardless of the section 203(c) of the IAA could be
license; (ii) a recent finding of fault or size of the agency. There is also no basis construed to exclude home studies from
liability in an administrative or judicial for reading the term ‘‘intercountry adoption services on the possible
action; or (iii) a recent finding of adoptions’’ in this provision of the IAA ground that, after the Convention comes
criminal fraud or financial misconduct. to mean ‘‘intercountry adoptions that into force, providers that perform only
These requirements, together with the would have been Convention adoptions a home or child background study, and
performance standards required to had the Convention been in force in the no other adoption service in a case, will
maintain temporary accreditation set United States at the time they were be excepted by IAA section 201(b) from
out in § 96.104, are still significantly performed.’’ the section 201(a) requirement that all
less involved than the standards for full 3. Comment: One commenter strongly adoption services be provided by an
accreditation. Given the difference suggests that there should be no accredited, approved, or supervised
between the requirements for full and extensions of temporary accreditation, provider. We are satisfied that the
temporary accreditation, it should take under any circumstances. answer to this question is no. As just
small agencies less time and expense to Response: The rule does not allow explained, the plain language of section
obtain temporary accreditation than it any such extensions. Under the IAA, 203(c) directs us to consider all cases in
would to get full accreditation. The temporary accreditation is a one-time which adoption services are provided
Department believes that the temporary status that is available only for a period when determining eligibility for
accreditation framework will help of time immediately after the temporary accreditation, and home
maintain a diverse array of adoption Convention enters into force. studies are an adoption service. While
service providers that are available to 4. Comment: One commenter requests section 201(b) exempts home or child
place children eligible for adoption and clarification of what constitutes a small background study providers from
to assist birth families and prospective agency under § 96.96(a)(1). It is an meeting the accreditation, approval, or
adoptive families. At the same time, the agency that arranges approximately 20 supervision requirement when the home
temporary accreditation framework will adoptions per year, but that also or child background study is the only
help to ensure that temporarily conducts over 100 home studies. It service they provide in a case, the
accredited agencies can still comply questions whether it would qualify as a exemption does not change the fact that
with the basic provisions of the small agency, given that home studies a home or child background study is an
Convention and the IAA. are considered an adoption service. adoption service. Instead the exemption
Response: After careful review, we recognizes special circumstances in
Section 96.96—Eligibility Requirements have concluded that an agency that which a provider will not be required to
for Temporary Accreditation arranges 20 adoptions and conducts be accredited, approved or supervised.
1. Comment: Commenters support the over 100 home studies a year would not Accreditation, approval, or supervision
temporary accreditation provision, qualify for temporary accreditation. of home or child background study
particularly to the extent it may benefit Section 203(c) of the IAA provides providers is still required if the home or
small agencies. expressly that agencies that have child background study is performed in
conjunction with other adoption Response: The Department is not or administrative review of a denial of
services on a case. Moreover, the modifying the standards for temporary full or temporary accreditation.
purpose of IAA section 203(c) is to accreditation based on this comment. Response: These rules treat denial of
determine who is qualified for We believe that they are consistent with temporary accreditation the same as the
temporary accreditation based on the the IAA’s provisions on temporary denial of an initial application for full
historic volume of cases in which an accreditation and strike the proper accreditation or approval. For a
applicant has provided adoption balance between ensuring that agencies discussion of why this rule does not
services prior to entry into force of the can provide adoption services in the permit review of initial denials of full or
Convention. This retrospective rule has manner required under the IAA and the temporary accreditation, please see the
an entirely different function than the Convention and minimizing the impact response to comments on § 96.59.
forward-looking rule for determining, on small agencies.
under IAA section 201, which providers Section 96.103—Oversight by
need to be accredited, approved, or Section 96.98—Length of Temporary Accrediting Entities
supervised after entry into force of the Accreditation Period
1. Comment: Several commenters
Convention. The fact that providers of Comment: One commenter suggests think that the provision in § 96.103(b) in
home studies in some circumstances do that the period of temporary the proposed rule allowing the
not need to be accredited, approved, or accreditation be one year, not two years. accrediting entity to assess additional
supervised after entry into force is not Response: The Department does not fees for actual costs incurred is arbitrary
inconsistent with the fact that home have the authority to vary the lengths of because the accrediting entity, at its
studies are counted as ‘‘adoption the temporary accreditation periods discretion, can visit the agency at the
services’’ for the purposes of from the periods set in the IAA. Section agency’s expense. One commenter
determining whether an agency that 203(c) of the IAA provides that an
wishes to become accredited can first be suggested that the Department set
agency can get temporary accreditation parameters for extraordinary cases to
temporarily accredited. for a period of one year if it has
Accordingly, assuming the protect agencies from unnecessary fees.
‘‘provided adoption services in fewer
commenter performs its current volume Response: The Department does not
than 100 intercountry adoptions in the
of adoption services in the year believe it is appropriate to assume that
preceding calendar year,’’ and for two
preceding entry into force of the designated accrediting entities will
years if it has ‘‘provided adoption
Convention, the options available to the arbitrarily conduct site visits in order to
services in fewer than 50 intercountry
commenter under the statute and generate fees. Accreditation fees may
adoptions in the preceding calendar
regulations will be either to obtain full not exceed actual costs, so conducting
year.’’
accreditation, or to operate as an site visits will not be a financial
exempted or supervised provider. Section 96.100—Procedures for windfall for accrediting entities.
5. Comment: A commenter suggests Evaluating Applicants for Temporary The Department has, however,
that limiting eligibility to agencies that Accreditation eliminated from § 96.103 language
have provided adoption services for duplicative of § 96.111’s authorization
three years prior to the transitional Comment: A commenter supports
allowing accrediting entities to use site of charges and fees related to site visits.
application deadline (TAD) will exclude The ability of an accrediting entity to
small agencies that have recently visits to determine an agency’s
eligibility for temporary accreditation, charge fees for a site visit is unaffected
received their State licenses. Others by this change. The Department has also
think requiring a license for five years but the commenter recommends that
accrediting agencies rely primarily on added language to § 96.111(a) to clarify
prior to the TAD is more appropriate. that an accrediting entity may require
One commenter suggests that temporary documentation when evaluating
applications for temporary accreditation the payment of estimated additional fees
accreditation should be available to any for a site visit in advance, subject to a
group that wishes to form a new in order to minimize the burden and
cost for small agencies. refund of any overcharge.
adoption agency, otherwise the creation
of new agencies will be discouraged, Response: The Department agrees 2. Comment: One commenter suggests
and the number of agencies available to with the thrust of this comment but that the Department itself closely
prospective adoptive parent(s) will be does not believe the regulation should monitor small agencies.
severely limited. be modified to specifically require Response: The accrediting entities
Response: The requirement that an primary reliance on documentation. The will have primary oversight
agency must have provided adoption rule, as written, strikes an appropriate responsibility for agencies that they
services for at least three years prior to balance between minimizing the burden have granted temporary accreditation.
the TAD before it is eligible for and cost for small agencies to get The Department, nevertheless, retains
temporary accreditation was taken temporarily accredited and ensuring oversight responsibility for agencies of
directly from section 203(c)(3)(B) of the that temporarily accredited agencies can all sizes. The Department has
IAA. The Department believes that it is provide satisfactory adoption services to independent authority under § 96.107 to
unnecessary—and would be families. If the accrediting entity is withdraw an agency’s temporary
inconsistent with the purpose of the satisfied, after reviewing the accreditation if the agency is
temporary accreditation provisions of documentation submitted by an agency, substantially out of compliance with the
the IAA—to require by regulation that that an agency is qualified for temporary standards in § 96.104 and the
small agencies have provided services accreditation, then § 96.100(b) permits accrediting entity has failed or refused
for a specific time period longer than 3 the accrediting entity to forego a site to take appropriate enforcement action,
years. visit. or if the Department finds such action

6. Comment: Some commenters will protect the interests of children,
Section 96.102—Review of Temporary
suggest that agencies should be subject further U.S. foreign policy or national
Accreditation Decisions
to more stringent requirements for security interests, or protect the ability
temporary accreditation than those in Comment: Several commenters raise of U.S. citizens to adopt children under
the proposed rule. concerns over the limits of judicial and/ the Convention.
Section 96.105—Adverse Action Against flexibility analysis at the time that a rule Providing for these core duties is
a Temporarily Accredited Agency by an is finalized to determine the regulatory unavoidable.
Accrediting Entity impact of the rulemaking on small We have nevertheless sought to
Comment: Comments pertaining to entities. However, if the agency does not minimize the impact of accreditation/
§§ 96.76 and 96.77 also relate to this believe that the rule will have a approval fees in a number of ways that
temporary accreditation counterpart. significant economic impact on a will benefit small agencies and persons.
Response: Changes made to § 96.105 substantial number of small entities the First, there are safeguards on accrediting
and § 96.109(c) were made to conform to agency may publish a certification in entity fees in the IAA that are mirrored
the approach taken in § 96.76. Please see lieu of a regulatory analysis, provided in the final rule. In particular, the IAA
the discussion under §§ 96.76 and 96.77 that the certification is accompanied by prohibits such fees from exceeding the
for relevant comments and responses. a factual basis. As stated in the costs of accreditation/approval. In
certification for the proposed rule there addition, the Department must approve
Section 96.106—Review of the are between 420 and 600 adoption the accreditation/approval fees assessed
Withdrawal of Temporary Accreditation service providers, the vast majority of by accrediting entities. In setting fees,
by the Accrediting Entity which are small, that may have to the Department and the accrediting
Comment: Comments pertaining to comply with this rulemaking. entities must consider the relative size,
§ 96.79(a) also relate to this section as its Accordingly, the rule will impact a the geographic location, and the number
temporary accreditation counterpart. substantial number of small entities. of Convention adoption cases managed
Response: The Department made However, for the reasons provided by the agencies or persons expected to
minor changes to § 96.106(a) to conform below, the Department does not believe apply, thus there will be consideration
with the approach taken in § 96.79(a). that the economic impact will be of the impact of proposed fees on small
significant. agencies and persons. A fee schedule
Section 96.107—Adverse Action Against At the request of the Small Business submitted to the Department for
a Temporarily Accredited Agency by the Administration (SBA), we included in approval must contain: (1) A list of
Secretary the notice of proposed rulemaking the separate non-refundable fees for
Comment: Comments pertaining to following questions on small entity Convention accreditation and
§ 96.83 also relate to this section as its impact for public comment: (1) Will Convention approval; (2) the cost of all
temporary accreditation counterpart. most small agencies be eligible for activities associated with the
Response: The Department made temporary accreditation under the accreditation/approval cycle; and (3) the
conforming changes to § 96.107(b) criteria provided in subpart N? (2) How cost of obtaining temporary
consistent with changes that it made to many agencies are likely to seek accreditation services (if provided by
§ 96.83(b). Please see the discussion temporary accreditation rather than full the accrediting entity). Also, accrediting
under § 96.83 for the relevant comment accreditation? (3) What are the
entities will be required to provide clear
and response. accrediting entities likely to charge the
information on fees to the public,
agencies for the temporary accreditation
Section 96.109—Effect of the including making their fee schedules
process? (4) What are the estimated
Withdrawal of Temporary Accreditation available to the public and listing the
costs agencies will have to expend to
by the Accrediting Entity or the fees to be charged to the applicant in a
comply with the standards in subpart
Secretary contract between the parties. The
N? (5) Will small agencies be negatively
Department believes that the safeguards
Comment: Comments pertaining to impacted if they are unable to qualify
in the final rule will minimize the costs
§§ 96.77(b) and (c) also relate to this for temporary accreditation? We
of accreditation fees for small entities.
section as its temporary accreditation received no comments responding
specifically to the questions posed by The Department, however, cannot
counterpart. predict or guarantee any particular
Response: The Department made the SBA, but we summarize and address
below the comments which we did range of fees prior to designating the
conforming changes to § 96.109(a) and accrediting entities and approving their
(b) consistent with changes that it made receive related to the impact on small
entities of this rule: fee schedules.
to § 96.77(b) and (c). Please see the Second, small agencies may pursue
discussion under § 96.77(b) for relevant Comment: Six commenters expressed
concern about accreditation fees and the option of temporary accreditation.
comments and responses. In addition, Small agencies that fulfill certain
believe that accreditation fees could
the Department clarified the related criteria may be temporarily accredited
range from $45,000 to $100,000 per
performance standard, in § 96.105(k), to for one or two years, depending upon
applicant.
provide that the closure plan must Response: Consistent with the IAA, size. The applicable standards for
include provisions for organized closure accrediting entities will be authorized to temporary accreditation are less
and reimbursements to clients, charge agencies and persons fees to comprehensive than the standards for
mirroring a change made to § 96.33(e). cover the cost of conducting the full accreditation. Also, obtaining
Please see also the response to comment accreditation process, which in the case temporary accreditation is an
9 on § 96.33. of full accreditation or approval will abbreviated process—a site visit is
V. Regulatory Review include: (1) Reviewing an applicant’s optional, not required. The Department
written application; (2) verifying the expects the fees associated with the cost
A. Regulatory Flexibility Act/Executive information the applicant provided by of temporary accreditation to be less
Order 13272: Small Business examining underlying documentation; than the fees for full accreditation.
The Department has reviewed the (3) considering written complaints; (4) Third, an agency or person can assist
final rule’s impact on small agencies conducting off-site or in-person with adoptions under the Convention
and persons in accordance with the interviews; (5) consulting with relevant without becoming accredited or
final regulatory analysis requirements in State licensing authorities; (6) approved, and can therefore avoid
the Regulatory Flexibility Act (RFA), 5 conducting a site visit; and (7) taking paying accreditation/approval fees by
U.S.C. 601–612. The RFA requires an adverse action and defending any legal acting under the supervision of an
agency to perform a final regulatory challenges to enforcement measures. accredited agency or approved person.
Finally, the IAA and the regulations rule issued on September 15, 2003. The With regard to budget and audit
exempt certain service providers from proposed rule preamble at Section VI, A standards, we modified the language of
the requirements of accreditation/ contains an analysis of the impact on § 96.33 to make meeting the budget
approval. For example, a social work small entities. After considering the standards more practicable while still
professional or organization that public comments, the Department maintaining a focus on an agency’s or
performs a home study or child continues to believe that the basis and person’s financial soundness. The
background study in the United States, conclusions of that analysis are sound. proposed rule required agencies to keep
but is not currently providing and has That analysis therefore is hereby three months of cash reserves on hand.
not previously provided any other incorporated by reference and available The final rule instead requires the assets
adoption service in connection with a at 68 FR 54064, 54089–54090 on-hand to be sufficient to meet two
particular Convention adoption, is an (September 15, 2003). months of expenses and allows agencies
‘‘exempted provider.’’ Exempted We have taken a number of steps, to satisfy the standard by including non-
providers do not have to be accredited, however, in the final rule to be cash assets. In addition, the agency or
temporarily accredited, approved, or responsive to the comments on the costs person’s finances are subject to an
supervised by a primary provider. Thus of compliance, while at the same time independent audit every four years
small home study providers and keeping in mind the specific IAA instead of annually as initially
individual social workers that provide requirements for certain standards and proposed. Requiring less cash on hand
only home studies or child background the overall statutory goals of protecting and reducing the frequency of
studies will not have to pay to become the best interests of a child and of independent audits will enable small
accredited or approved. protecting birth parents, adoptive agencies and persons to demonstrate
Comment: One commenter is parents, and children from abuses. For financial soundness without incurring
concerned that private accrediting example, we revisited and changed, to significant new costs.
entities will charge excessive fees for lower the impact on small entities, the We have also considered the concerns
travel and accommodations during the standards relating to the following of commenters who believed that the
accreditation process. issues: education and experience requirements
Response: We address the costs of site for social service personnel would be
• Risk assessment; primary provider’s
visit evaluations in this final rule. too costly and have made cost-saving
liability; waivers of liability;
Section 96.8(b)(2) provides that separate changes. The final rule differs from the
• Budget and audit;
fees based on actual costs incurred may proposed rule in that non-supervisory
be charged for the travel and • Training and education of social
employees who are conducting home
maintenance of evaluators, and service personnel.
studies or child background studies are
§ 96.111(a) also requires that additional Under the final rule’s standards on not required to hold a master’s degree in
fees be paid for actual costs involved risk assessment and liability, agencies social work. The final rule requires that
with site visits to temporarily accredited and persons are not required to retain an these personnel be authorized or
agencies. These costs are easily verified independent provider to conduct a risk licensed to complete a home study
through receipts for travel expenses. assessment. Instead, they may use in- under the laws of the State in which
Additionally, State licensing authorities house personnel, thereby reducing the they practice, meet DHS requirements
and nonprofit entities chosen to be cost of an assessment. Moreover, we for home study preparers, and be
accrediting entities are likely to have revised §§ 96.45 and 96.46 so that monitored by a qualified social work
travel policies that provide internal primary providers are no longer supervisor. Likewise, we reduced from
limits on payments for expenses such as required to assume tort, contract, and 20 hours each year to 30 hours every
travel, meals, and accommodations. In other civil liability to the prospective two years the training requirement for
addition, the Department can address adoptive parent(s) for the supervised employees who provide adoption
this issue in the agreements with the provider’s provision of contracted services that involve clinical skills and
accrediting entities. The rule provides adoption services or to maintain a bond, judgment.
sufficient safeguards to ensure that the escrow account, or liability insurance in While some commenters also were
travel charges are not burdensome to an amount sufficient to cover the risks concerned about the potential cost of
small entities and to ensure the of liability arising from its work with standards involving data collection, the
reasonableness of charges for the travel supervised providers. In addition, Department did not significantly modify
and maintenance of site evaluators. § 96.39, which prohibited agencies and the standards related to data collection.
Comment: Nine commenters believe persons from using blanket waivers of Section 104 of the IAA lists the
that it will create great economic liability, has been changed so that information and data that must be
hardship for small agencies and persons agencies and persons may ask collected and reported to Congress
to comply with the standards found in prospective adoptive parent(s) to sign a annually. To ensure the availability of
subpart F. A few commenters write that waiver after full disclosure of this information, § 96.43 of the rule still
complying with the standards of subpart information as long as the waiver requires accredited agencies and
F will be so costly that many small complies with applicable State law and approved persons who are acting as
agencies and persons could be forced to is limited, specific, and based on risks primary providers to track cases, to
close. Other commenters are concerned that have been discussed and explained collect data, and to report the
that increased costs for agencies and in the adoption services contract. By information as set forth in the rule.
persons will be passed on to prospective changing these standards, we believe The Department also has considered
adoptive parent(s). that we have decreased the risk input on the costs to agencies and
Response: The Department is aware exposure of primary providers so that persons of complying with the
that the cost of providing adoption they will more easily obtain the standards in subpart F. The cost
services in Convention cases will be required insurance at a reasonable cost. information from commenters ranged
affected by the cost of complying with In total, the revision of these standards widely—some commenters predicted
the standards in subpart F, and makes compliance easier by decreasing complying with subpart F could cost
discussed that impact at length in the the cost and burden on small agencies from $75,000 to $100,000 per agency or
explanatory statement to the proposed and persons. person. Others suggested that a range of
$2,000 to $3,000 per case in increased event, this rule will not result in the E. Executive Order 12866: Regulatory
costs that agencies and persons would expenditure by State, local, or tribal Review
have to charge for adoption services. governments, in the aggregate, or by the This regulation has been reviewed by
(Commenters were not always clear private sector, of $100 million or more the Office of Management and Budget.
about whether these projections in any year. Moreover, because this rule
included accreditation/approval fees or will not significantly or uniquely affect F. Executive Order 12988: Civil Justice
just the cost of complying with the small governments, section 203 of Reform
standards in subpart F.) We reviewed UFMA, 2 U.S.C. 1533, does not require The Department has reviewed these
the standards, and concluded that they preparation of a small government regulations in light of sections 3(a) and
are either required by section 203(b) of agency plan in connection with it. 3(b)(2) of Executive Order 12988 to
the IAA or will otherwise further the eliminate ambiguity, minimize litigation
goals of the IAA. D. Executive Order 13132: Federalism
risks, establish clear legal standards,
In summary, the Department asserts
A rule has federalism implications and reduce burden. The Department has
that the economic impact on small
under Executive Order 13132 if it has a made every reasonable effort to ensure
entities will not be significant. The final
substantial direct effect on the States, on compliance with the requirements in
rule allows agencies and persons to
the relationship between the national Executive Order 12988.
choose to be accredited or approved or
to act as supervised providers; largely government and the States, or on the G. The Paperwork Reduction Act of
exempts certain types of very small distribution of power and 1995
providers, specifically home study and responsibilities among the various
This rule does not impose information
child background study preparers; levels of government. The federalism
collection requirements subject to the
includes a special temporary implications of the rule in light of the
Paperwork Reduction Act of 1995
accreditation procedure just for small requirements of the IAA are discussed
(PRA), 44 U.S.C., Chapter 35. Section
agencies; and uses a substantial in Section IV paragraph (D) of the
503(c) of the IAA specifically exempts
compliance structure, so that entities are proposed rule in the preamble. In light from the PRA information collection for
not required to comply fully with every of that analysis, the Department finds several purposes, including information
single standard in order to be accredited that this regulation will not have collections for purposes of IAA section
or approved. The Department hereby substantial direct effects on the States, 202(b)(4), which relates to data
certifies that this rule will not have a on the relationship between the national
significant economic impact on a collection, records maintenance, and
government and the States, or on the reporting by the accrediting entities. In
substantial number of small entities. distribution of power and accord with this and the other IAA
B. The Small Business Regulatory responsibilities among the various exemptions from the PRA, at the time of
Enforcement Fairness Act of 1996 levels of government. Therefore, the the proposed rule the Department
Department has determined that this determined that all of the collections of
This rule is not a major rule, as
rule does not have sufficient federalism information contained in the rule were
defined by 5 U.S.C. 804, for purposes of
congressional review of agency implications to require consultations or exempt from PRA requirements, with
rulemaking under the Small Business to warrant the preparation of a the exception of the third-party
Regulatory Enforcement Fairness Act of federalism summary impact statement disclosures contained in §§ 96.91 and
1996, Public Law 104–121. This rule under section 6 of Executive Order 96.92 of subpart M. The Department has
will not result in an annual effect on the 13132. modified § 96.91 and § 96.92 and, after
economy of $100 million or more; a Comment: Some commenters argued re-examining the language, purpose, and
major increase in costs or prices; or, that State licensing should be sufficient history of IAA section 503(c)’s broad
significant adverse effects on for Convention accreditation and that PRA exemption addressing the
competition, employment, investment, the Department should not require information collection and management
productivity, innovation, or on the agencies to become accredited at the duties of accrediting entities, has
ability of United States-based Federal level, while others argued that concluded that the disclosure
companies to compete with foreign- the regulations deferred too much to requirements in these sections, like the
based companies in domestic and State licensing of agencies. rest of the information collections in
import markets. this rule, are exempted from the PRA.
Response: Federal accreditation The explanation of the IAA exemptions
C. The Unfunded Mandates Reform Act standards for intercountry adoptions to the PRA were explained in the
of 1995 under the Convention are required to Department’s preamble to the proposed
Section 202 of the Unfunded implement the Convention and the IAA; rule published on September 15, 2003
Mandates Reform Act of 1995 (UFMA), State licensing or authorization to (Section IV, paragraph F), which is
Public Law 104–4; 109 Stat. 48; 2 U.S.C. provide adoption services is not incorporated herein by reference, to the
1532, generally requires agencies to sufficient to meet the requirements of extent that it is consistent with our
prepare a statement, including cost- the Convention or the IAA. While the conclusion that all collections in the
benefit and other analyses, before Department considered State licensing final rule are exempt from the PRA.
proposing any rule that may result in an practices in crafting the rule, as required Consistent with this conclusion, the
annual expenditure of $100 million or by section 203(a)(2) of the IAA, the rule request for approval of an information
more by State, local, or tribal contains Federal standards related collection that was submitted to OMB
governments, or by the private sector. specifically to the minimum standards for review and clearance concurrent
Section 4 of UFMA, 2 U.S.C. 1503, of section 203(b) of the IAA. These IAA- with the notice of proposed rulemaking
excludes legislation necessary for related standards, and standards related has been withdrawn. The principal
implementation of treaty obligations. to compliance with the Convention, practical effect of recognizing this
The IAA falls within this exclusion may or may not be part of a particular exemption is that the disclosure
because it is the implementing State’s licensing requirements for requirements under § 96.91 and § 96.92
legislation for the Convention. In any adoption agencies. will not have to be reviewed under the
PRA every three years in order to multiplied by 6); and $77,274.00 in being. As for the impact of costs on
remain effective. annual operation and maintenance costs adoptive families, we have revised the
Although the PRA does not apply to ($12,879.00 multiplied by 6). The rule in many sections to lower the costs
these sections as they have been revised, burden of the final rule would not be of compliance while at the same time
the Department has remained attentive any greater and is likely to be trying to ensure that the rule contains
to the regulatory burden issues significantly less because the final rule standards that are required under the
associated with them, and has does not require the preparation of a IAA and/or further its objectives.
considered the one comment received summary of the accreditation or
on the burden estimates for the third- approval study. List of Subjects in 22 CFR Part 96
party disclosure requirements contained Adoption and foster care,
in §§ 96.91 and 96.92. The commenter H. Congressional Review
International agreements, Reporting and
suggests that no accurate estimate of This rule is not a major rule as
recordkeeping requirements.
PRA burden hours can be made, and defined in 5 U.S.C. Chapter 8.
also suggests increasing the estimate of ■ Accordingly, the Department adds
I. The Treasury and General
burden hours. new part 96 to title 22 of the CFR,
Government Appropriations Act of
The Department did subsequent chapter I, subchapter J to read as
1999—Assessment of Federal
research and revised its burden follows:
Regulations and Policies on Families
estimates. We acknowledge that, at this
time, it is difficult to estimate burdens In light of the subject matter of these PART 96—ACCREDITATION OF
accurately without knowing the exact regulations and section 654 of the AGENCIES AND APPROVAL OF
numbers of agencies and persons that Treasury and General Government PERSONS UNDER THE
will apply for accreditation or approval. Appropriations Act of 1999, Public Law INTERCOUNTRY ADOPTION ACT OF
Nevertheless, we used information from 105–277, 112 Stat. 2681 (1998), the 2000 (IAA)
potential accrediting entities to estimate Department has assessed the impact of
these regulations on family well-being Subpart A—General Provisions
the anticipated burden of the third-party
disclosure duties required under in accordance with section 654(c) of that Sec.
subpart M. At the time we did the Act. This rule implements the 96.1 Purpose.
Convention and the IAA requirements 96.2 Definitions.
original estimates, we believed we 96.3 [Reserved].
might have up to nine accrediting related to the accreditation and approval
entities. We currently have six of adoption service providers who Subpart B—Selection, Designation, and
candidates eligible to become provide adoption services to families Duties of Accrediting Entities
accrediting entities. In response to this involved in an intercountry adoption. 96.4 Designation of accrediting entities by
comment, we contacted all six current This rule will promote child safety, the Secretary.
accrediting entity candidates and asked child and family well-being, and 96.5 Requirement that the accrediting entity
them to estimate the additional burden stability for children in need of a be a nonprofit or public entity.
permanent family placement through 96.6 Performance criteria for designation as
in hours and dollars to comply with the
intercountry adoption. The rule will an accrediting entity.
third-party disclosure requirements set 96.7 Authorities and responsibilities of an
forth in § 96.91 (Dissemination of help to ensure that agencies and persons accrediting entity.
information to the public about are taking appropriate steps to protect 96.8 Fees charged by accrediting entities.
accreditation and approval status) and children and to strengthen and support 96.9 Agreement between the Secretary and
§ 96.92 (Dissemination of information to families involved in the intercountry the accrediting entity.
the public about complaints against adoption process. 96.10 Suspension or cancellation of the
accredited agencies and approved Comment: The Department received designation of an accrediting entity by
persons) of the proposed rule. Those several comments on the effect of the the Secretary.
estimates ranged from less than 26 regulation on family well-being. 96.11 [Reserved].
hours per year to as high as 459 hours Commenters point out that the rule will Subpart C—Accreditation and Approval
per year. The Department thought it promote child safety and family well- Requirements for the Provision of Adoption
prudent to be conservative, so we used being because the rule is consistent with Services
the highest estimate we were given, 459 the overall goal of the Convention, 96.12 Authorized adoption service
hours, which added an additional 94 which is to place children eligible for providers.
hours per year to our previous estimate. adoption in permanent family 96.13 Circumstances in which
In addition, using the highest cost placements. Others were concerned that accreditation, approval, or supervision is
estimate, we added an additional the Convention was not a good idea not required.
$1,924.00 per year to our previous because they believe adoptions from a 96.14 Providing adoption services using
country typically decrease substantially other providers.
estimate for yearly maintenance costs,
96.15 Examples.
for an estimated annual maintenance when a country becomes a Convention 96.16 Public domestic authorities.
cost burden of $12,879.00. While these country, even though there are still 96.17 Effective date of accreditation and
average burden estimates each increased children eligible for an intercountry approval requirements.
slightly, the overall burden estimate adoption. Other commenters were
went down because the number of concerned about potential increased Subpart D—Application Procedures for
Accreditation and Approval
eligible accrediting entity candidates costs of adoptions and the negative
has decreased from 9 to 6. Therefore, effect such cost increases might have on 96.18 Scope.
each estimate was multiplied by 6, the availability of adoption as an option 96.19 Special provision for agencies and
persons seeking to be accredited or

rather than 9, to get our total annual for families. approved as of the time the Convention
burden estimates. Thus, our new burden Response: We cannot act contrary to enters into force for the United States.
estimates for the proposed rule would the Convention and the IAA. We note 96.20 First-time application procedures for
be: 2754 hours per year (459 hours that the Convention’s principles and accreditation and approval.
multiplied by 6); $63,978.00 for total international norms are consistent with 96.21 Choosing an accrediting entity.
start-up/capital costs ($10,663.00 section 654’s focus on family well- 96.22 [Reserved].
Subpart E—Evaluation of Applicants for 96.52 Performance of Convention 96.82 The Secretary’s response to actions by
Accreditation and Approval communication and coordination the accrediting entity.
96.23 Scope. functions in incoming cases. 96.83 Suspension or cancellation of
96.24 Procedures for evaluating applicants Standards for Cases in Which a Child is accreditation or approval by the
for accreditation or approval. Emigrating From the United States (Outgoing Secretary.
96.25 Access to information and documents Cases) 96.84 Reinstatement of accreditation or
requested by the accrediting entity. approval after suspension or cancellation
96.53 Background studies on the child and by the Secretary.
96.26 Protection of information and consents in outgoing cases.
documents by the accrediting entity. 96.85 Temporary and permanent debarment
96.54 Placement standards in outgoing by the Secretary.
96.27 Substantive criteria for evaluating cases.
applicants for accreditation or approval. 96.86 Length of debarment period and
96.55 Performance of Convention reapplication after temporary debarment.
96.28 [Reserved]. communication and coordination 96.87 Responsibilities of the accredited
Subpart F—Standards for Convention functions in outgoing cases. agency, approved person, and
Accreditation and Approval 96.56 [Reserved]. accrediting entity following suspension,
96.29 Scope. Subpart G—Decisions on Applications for cancellation, or debarment by the
Accreditation or Approval Secretary.
Licensing and Corporate Governance 96.88 Review of suspension, cancellation,
96.30 State licensing. 96.57 Scope. or debarment by the Secretary.
96.31 Corporate Structure. 96.58 Notification of accreditation and 96.89 [Reserved].
96.32 Internal structure and oversight. approval decisions.
96.59 Review of decisions to deny Subpart M—Dissemination and Reporting of
Financial and Risk Management accreditation or approval. Information by Accrediting Entities
96.33 Budget, audit, insurance, and risk 96.60 Length of accreditation or approval 96.90 Scope.
assessment requirements. period. 96.91 Dissemination of information to the
96.34 Compensation. 96.61 [Reserved]. public about accreditation and approval
Ethical Practices and Responsibilities status.
Subpart H—Renewal of Accreditation or
96.92 Dissemination of information to the
96.35 Suitability of agencies and persons to Approval public about complaints against
provide adoption services consistent 96.62 Scope. accredited agencies and approved
with the Convention. 96.63 Renewal of accreditation or approval. persons.
96.36 Prohibition on child buying. 96.64 [Reserved]. 96.93 Reports to the Secretary about
Professional Qualifications and Training for accredited agencies and approved
Employees Subpart I—Routine Oversight by persons and their activities.
Accrediting Entities 96.94 [Reserved].
96.37 Education and experience
requirements for social service 96.65 Scope.
96.66 Oversight of accredited agencies and Subpart N—Procedures and Standards
personnel. Relating to Temporary Accreditation
96.38 Training requirements for social approved persons by the accrediting
service personnel. entity. 96.95 Scope.
96.67 [Reserved]. 96.96 Eligibility requirements for temporary
Information Disclosure, Fee Practices, and accreditation.
Quality Control Policies and Practices Subpart J—Oversight Through Review of 96.97 Application procedures for temporary
96.39 Information disclosure and quality Complaints accreditation.
control practices. 96.68 Scope. 96.98 Length of temporary accreditation
96.40 Fee policies and procedures. 96.69 Filing of complaints against period.
accredited agencies and approved 96.99 Converting an application for
Responding to Complaints and Records and
persons. temporary accreditation to an
Reports Management application for full accreditation.
96.70 Operation of the Complaint Registry.
96.41 Procedures for responding to 96.71 Review by the accrediting entity of 96.100 Procedures for evaluating applicants
complaints and improving service complaints against accredited agencies for temporary accreditation.
delivery. and approved persons. 96.101 Notification of temporary
96.42 Retention, preservation, and 96.72 Referral of complaints to the accreditation decisions.
disclosure of adoption records. Secretary and other authorities. 96.102 Review of temporary accreditation
96.43 Case tracking, data management, and 96.73 [Reserved]. decisions.
reporting. 96.103 Oversight by accrediting entities.
Service Planning and Delivery Subpart K—Adverse Action by the 96.104 Performance standards for
Accrediting Entity temporary accreditation.
96.44 Acting as primary provider. 96.105 Adverse action against a temporarily
96.45 Using supervised providers in the 96.74 Scope.
96.75 Adverse action against accredited accredited agency by an accrediting
United States. entity.
96.46 Using providers in Convention agencies or approved persons not in
substantial compliance. 96.106 Review of the withdrawal of
countries. temporary accreditation by an
96.76 Procedures governing adverse action
Standards for Cases in Which a Child is by the accrediting entity. accrediting entity.
Immigrating to the United States (Incoming 96.77 Responsibilities of the accredited 96.107 Adverse action against a temporarily
Cases) agency, approved person, and accredited agency by the Secretary.
96.47 Preparation of home studies in accrediting entity following adverse 96.108 Review of the withdrawal of
incoming cases. action by the accrediting entity. temporary accreditation by the Secretary.
96.48 Preparation and training of 96.109 Effect of the withdrawal of
96.78 Accrediting entity procedures to
prospective adoptive parent(s) in temporary accreditation by the
terminate adverse action.
incoming cases. accrediting entity or the Secretary.
96.79 Administrative or judicial review of
96.110 Dissemination and reporting of
96.49 Provision of medical and social adverse action by the accrediting entity.
information in incoming cases. information about temporarily accredited
96.80 [Reserved].
96.50 Placement and post-placement agencies.
monitoring until final adoption in Subpart L—Oversight of Accredited 96.111 Fees charged for temporary
incoming cases. Agencies and Approved Persons by the accreditation.
96.51 Post-adoption services in incoming Secretary Authority: The Convention on Protection
cases. 96.81 Scope. of Children and Co-operation in Respect of
Intercountry Adoption (done at the Hague, pursuant to section 303(d) of the IAA Child welfare services means services,
May 29, 1993), S. Treaty Doc. 105–51 (1998), (42 U.S.C. 14932(d)). other than those defined as ‘‘adoption
1870 U.N.T.S. 167 (Reg. No. 31922 (1993)); Adoption service means any one of services’’ in this section, that are
The Intercountry Adoption Act of 2000, 42
the following six services: designed to promote and protect the
U.S.C. 14901–14954.
(1) Identifying a child for adoption well-being of a family or child. Such
Subpart A—General Provisions and arranging an adoption; services include, but are not limited to,
(2) Securing the necessary consent to recruiting and identifying adoptive
§ 96.1 Purpose. termination of parental rights and to parent(s) in cases of disruption (but not
This part provides for the adoption; assuming custody of the child),
accreditation and approval of agencies (3) Performing a background study on arranging or providing temporary foster
and persons pursuant to the a child or a home study on a prospective care for a child in connection with a
Intercountry Adoption Act of 2000 (Pub. adoptive parent(s), and reporting on Convention adoption or providing
L. 106–279, 42 U.S.C. 14901–14954). such a study; educational, social, cultural, medical,
Subpart B of this part establishes the (4) Making non-judicial psychological assessment, mental
procedures for the selection and determinations of the best interests of a health, or other health-related services
designation of accrediting entities to child and the appropriateness of an for a child or family in a Convention
perform the accreditation and approval adoptive placement for the child; adoption case.
functions. Subparts C through H (5) Monitoring a case after a child has Competent authority means a court or
establish the general procedures and been placed with prospective adoptive governmental authority of a foreign
standards for accreditation and approval parent(s) until final adoption; or country that has jurisdiction and
of agencies and persons (including (6) When necessary because of a authority to make decisions in matters
renewal of accreditation or approval). disruption before final adoption, of child welfare, including adoption.
Subparts I through M address the assuming custody and providing Complaint Registry means the system
oversight of accredited or approved (including facilitating the provision of) created by the Secretary pursuant to
agencies and persons. Subpart N child care or any other social service § 96.70 to receive, distribute, and
establishes special rules relating to pending an alternative placement. monitor complaints relevant to the
small agencies that wish to seek Agency means a private, nonprofit accreditation or approval status of
temporary accreditation. organization licensed to provide agencies and persons.
adoption services in at least one State. Convention means the Convention on
§ 96.2 Definitions. (For-profit entities and individuals that Protection of Children and Co-operation
As used in this part, the term: provide adoption services are in Respect of Intercountry Adoption
Accredited agency means an agency considered ‘‘persons’’ as defined in this done at The Hague on May 29, 1993.
that has been accredited by an section.) Convention adoption means the
accrediting entity, in accordance with Approved home study means a review adoption of a child resident in a
the standards in subpart F of this part, of the home environment of the child’s Convention country by a United States
to provide adoption services in the prospective adoptive parent(s) that has citizen, or an adoption of a child
United States in cases subject to the been: resident in the United States by an
Convention. It does not include a (1) Completed by an accredited individual or individuals residing in a
temporarily accredited agency. agency or temporarily accredited Convention country, when, in
Accrediting entity means an entity agency; or connection with the adoption, the child
that has been designated by the (2) Approved by an accredited agency has moved or will move between the
Secretary to accredit agencies (including or temporarily accredited agency. United States and the Convention
temporarily accredit) and/or to approve Approved person means a person that country.
persons for purposes of providing has been approved, in accordance with Convention country means a country
adoption services in the United States in the standards in subpart F of this part, that is a party to the Convention and
cases subject to the Convention. by an accrediting entity to provide with which the Convention is in force
Adoption means the judicial or adoption services in the United States in for the United States.
administrative act that establishes a cases subject to the Convention. Country of origin means the country
permanent legal parent-child Best interests of the child shall have in which a child is a resident and from
relationship between a minor and an the meaning given to it by the law of the which a child is emigrating in
adult who is not already the minor’s State with jurisdiction to decide connection with his or her adoption.
legal parent and terminates the legal whether a particular adoption or Debarment means the loss of
parent-child relationship between the adoption-related action is in a child’s accreditation or approval by an agency
adoptive child and any former parent(s). best interests. or person as a result of an order of the
Adoption record means any record, Case Registry means the tracking Secretary under which the agency or
information, or item related to a specific system jointly established by the person is temporarily or permanently
Convention adoption of a child received Secretary and DHS to comply with barred from accreditation or approval.
or maintained by an agency, person, or section 102(e) of the IAA (42 U.S.C. DHS means the Department of
public domestic authority, including, 14912). Homeland Security and encompasses
but not limited to, photographs, videos, Central Authority means the entity the former Immigration and
correspondence, personal effects, designated as such under Article 6(1) of Naturalization Service (INS) or any
medical and social information, and any the Convention by any Convention successor entity designated by the
other information about the child. An country or, in the case of the United Secretary of Homeland Security to
adoption record does not include a States, the United States Department of assume the functions vested in the
record generated by an agency, person, State. Attorney General by the IAA relating to
or a public domestic authority to Central Authority function means any the INS’s responsibilities.
comply with the requirement to file duty required under the Convention to Disruption means the interruption of
information with the Case Registry on be carried out, directly or indirectly, by a placement for adoption during the
adoptions not subject to the Convention a Central Authority. post-placement period.
Dissolution means the termination of Public domestic authority means an jurisdiction or impose other limits on
the adoptive parent(s)’ parental rights authority operated by a State, local, or the entity’s jurisdiction.
after an adoption. tribal government within the United (c) A public entity may only be
Exempted provider means a social States. designated to accredit agencies and
work professional or organization that Public foreign authority means an approve persons that are located in the
performs a home study on prospective authority operated by a national or public entity’s State.
adoptive parent(s) or a child background subnational government of a Convention
study (or both) in the United States in § 96.5 Requirement that accrediting entity
country.
connection with a Convention adoption be a nonprofit or public entity.
Secretary means the Secretary of
(including any reports or updates), but State, the Assistant Secretary of State for An accrediting entity must qualify as
that is not currently providing and has Consular Affairs, or any other either:
not previously provided any other Department of State official exercising (a) An organization described in
adoption service in the case. the Secretary of State’s authority under section 501(c)(3) of the Internal Revenue
IAA means the Intercountry Adoption the Convention, the IAA, or any Code of 1986, as amended, that has
Act of 2000, Public Law 106–279 (2000) regulations implementing the IAA, expertise in developing and
(42 U.S.C. 14901–14954), as amended pursuant to a delegation of authority. administering standards for entities
from time to time. State means the fifty States, the providing child welfare services; or
Legal custody means having legal District of Columbia, the (b) A public entity (other than a
responsibility for a child under the Commonwealth of Puerto Rico, the Federal entity), including, but not
order of a court of law, a public limited to, any State or local
Commonwealth of the Northern Mariana
domestic authority, competent government or governmental unit or any
Islands, Guam, and the U.S. Virgin
authority, public foreign authority, or by political subdivision, agency, or
Islands.
operation of law. instrumentality thereof, that is
Supervised provider means any
Legal services means services, other responsible for licensing adoption
agency, person, or other non-
than those defined in this section as agencies in a State and that has
governmental entity, including any
‘‘adoption services,’’ that relate to the expertise in developing and
foreign entity, regardless of whether it is
provision of legal advice and administering standards for entities
called a facilitator, agent, attorney, or by
information and to the drafting of legal providing child welfare services.
any other name, that is providing one or
instruments. Such services include, but
more adoption services in a Convention § 96.6 Performance criteria for designation
are not limited to, drawing up contracts,
case under the supervision and as an accrediting entity.
powers of attorney, and other legal
responsibility of an accredited agency, An entity that seeks to be designated
instruments; providing advice and
temporarily accredited agency, or as an accrediting entity must
counsel to adoptive parent(s) on
approved person that is acting as the demonstrate to the Secretary:
completing DHS or Central Authority
primary provider in the case. (a) That it has a governing structure,
forms; and providing advice and
counsel to accredited agencies, Temporarily accredited agency means the human and financial resources, and
temporarily accredited agencies, an agency that has been accredited on systems of control adequate to ensure its
approved persons, or prospective a temporary basis by an accrediting reliability;
adoptive parent(s) on how to comply entity, in accordance with the standards (b) That it is capable of performing the
with the Convention, the IAA, and the in subpart N of this part, to provide accreditation or approval functions or
regulations implementing the IAA. adoption services in the United States in both on a timely basis and of
Person means an individual or a cases subject to the Convention. It does administering any renewal cycle
private, for-profit entity (including a not include an accredited agency. authorized under § 96.60;
corporation, company, association, firm, § 96.3 [Reserved].
(c) That it can monitor the
partnership, society, or joint stock performance of agencies it has
company) providing adoption services. Subpart B—Selection, Designation, accredited or temporarily accredited
It does not include public domestic and Duties of Accrediting Entities and persons it has approved (including
authorities or public foreign authorities. their use of any supervised providers) to
Post-adoption means after an § 96.4 Designation of accrediting entities ensure their continued compliance with
adoption; in cases in which an adoption by the Secretary. the Convention, the IAA, and the
occurs in a Convention country and is (a) The Secretary, in the Secretary’s regulations implementing the IAA;
followed by a re-adoption in the United discretion, will designate one or more (d) That it has the capacity to take
States, it means after the adoption in the entities that meet the criteria set forth in appropriate adverse actions against
Convention country. § 96.5 to perform the accreditation agencies it has accredited or temporarily
Post-placement means after a grant of (including temporary accreditation) accredited and persons it has approved;
legal custody or guardianship of the and/or approval functions. Each (e) That it can perform the required
child to the prospective adoptive accrediting entity’s designation will be data collection, reporting, and other
parent(s), or to a custodian for the set forth in an agreement between the similar functions;
purpose of escorting the child to the Secretary and the accrediting entity. The (f) Except in the case of a public
identified prospective adoptive agreement will govern the accrediting entity, that it operates independently of
parent(s), and before an adoption. entity’s operations. The agreements will any agency or person that provides
Primary provider means the be published in the Federal Register. adoption services, and of any
accredited agency, temporarily (b) The Secretary’s designation may membership organization that includes
accredited agency, or approved person authorize an accrediting entity to agencies or persons that provide
that is identified pursuant to § 96.14 as accredit (including temporarily accredit) adoption services;
responsible for ensuring that all six agencies, to approve persons, or to both (g) That it has the capacity to conduct
adoption services are provided and for accredit agencies and approve persons. its accreditation, temporary
supervising and being responsible for The designation may also limit the accreditation, and approval functions
supervised providers where used. accrediting entity’s geographic fairly and impartially;
(h) That it can comply with any (c) An accrediting entity must perform (d) Nothing in this section shall be
conflict-of-interest prohibitions set by all responsibilities in accordance with construed to provide a private right of
the Secretary in its agreement; the Convention, the IAA, the regulations action to challenge any fee charged by
(i) That it prohibits conflicts of implementing the IAA, and its an accrediting entity pursuant to a
interest with agencies or persons or with agreement with the Secretary. schedule of fees approved by the
any membership organization that Secretary.
includes agencies or persons that § 96.8 Fees charged by accrediting
provide adoption services; and entities. § 96.9 Agreement between the Secretary
(j) That it prohibits its employees or (a) An accrediting entity may charge and the accrediting entity.
other individuals acting as site fees for accreditation or approval An accrediting entity must perform its
evaluators, including, but not limited to, services under this part only in functions pursuant to a written
volunteer site evaluators, from accordance with a schedule of fees agreement with the Secretary that will
becoming employees or supervised approved by the Secretary. Before be published in the Federal Register.
providers of an agency or person for at approving a schedule of fees proposed The agreement will address:
least one year after they have evaluated by an accrediting entity, or subsequent (a) The responsibilities and duties of
such agency or person for accreditation, proposed changes to an approved the accrediting entity;
temporary accreditation, or approval. schedule, the Secretary will require the (b) The method by which the costs of
accrediting entity to demonstrate: delivering the accreditation, temporary
§ 96.7 Authorities and responsibilities of accreditation, or approval services may
an accrediting entity. (1) That its proposed schedule of fees
be recovered through the collection of
reflects appropriate consideration of the
(a) An accrediting entity may be fees from those seeking accreditation,
authorized by the Secretary to perform relative size and geographic location temporary accreditation, or approval,
some or all of the following functions: and volume of Convention cases of the and how the entity’s schedule of fees
(1) Determining whether agencies are agencies or persons it expects to serve; will be approved;
eligible for accreditation and/or (2) That the total fees the accrediting (c) How the accrediting entity will
temporary accreditation; entity expects to collect under the address complaints about accredited
(2) Determining whether persons are schedule of fees will not exceed the full agencies, temporarily accredited
eligible for approval; costs of accreditation or approval under agencies, and approved persons
(3) Overseeing accredited agencies, this part (including, but not limited to, (including their use of supervised
temporarily accredited agencies, and/or costs for completing the accreditation or providers) and complaints about the
approved persons by monitoring their approval process, complaint review and accrediting entity itself;
compliance with applicable investigation, routine oversight and (d) Data collection requirements;
requirements; enforcement, and other data collection (e) Matters of communication and
(4) Investigating and responding to and reporting activities). accountability between both the
complaints about accredited agencies, (b) The schedule of fees must: accrediting entity and the applicant(s)
temporarily accredited agencies, and (1) Establish separate non-refundable and between the accrediting entity and
approved persons (including their use of fees for Convention accreditation and the Secretary; and
supervised providers); Convention approval; (f) Other matters upon which the
(5) Taking adverse action against an (2) Include in each fee for full parties have agreed.
accredited agency, temporarily Convention accreditation or approval
accredited agency, or approved person, § 96.10 Suspension or cancellation of the
the costs of all activities associated with designation of an accrediting entity by the
and/or referring an accredited agency, the accreditation or approval cycle, Secretary.
temporarily accredited agency, or including but not limited to, costs for
approved person for possible action by (a) The Secretary will suspend or
completing the accreditation or cancel the designation of an accrediting
the Secretary; approval process, complaint review and
(6) Determining whether accredited entity if the Secretary concludes that it
investigation, routine oversight and is substantially out of compliance with
agencies and approved persons are
enforcement, and other data collection the Convention, the IAA, the regulations
eligible for renewal of their
and reporting activities, except that implementing the IAA, other applicable
accreditation or approval on a cycle
separate fees based on actual costs laws, or the agreement with the
consistent with § 96.60;
(7) Collecting data from accredited incurred may be charged for the travel Secretary. Complaints regarding the
agencies, temporarily accredited and maintenance of evaluators; and performance of the accrediting entity
agencies, and approved persons, (3) If the accrediting entity provides may be submitted to the Department of
maintaining records, and reporting temporary accreditation services, State, Bureau of Consular Affairs. The
information to the Secretary, State include fees as required by § 96.111 for Secretary will consider complaints in
courts, and other entities; and agencies seeking temporary determining whether an accrediting
(8) Assisting the Secretary in taking accreditation under subpart N of this entity’s designation should be
appropriate action to help an agency or part. suspended or canceled.
person in transferring its Convention (c) An accrediting entity must make (b) The Secretary will notify an
cases and adoption records. its approved schedule of fees available accrediting entity in writing of any
(b) The Secretary may require the to the public, including prospective deficiencies in the accrediting entity’s
accrediting entity: applicants for accreditation or approval, performance that could lead to the
(1) To utilize the Complaint Registry upon request. At the time of application, suspension or cancellation of its
as provided in subpart J of this part; and the accrediting entity must specify the designation, and will provide the
(2) To fund a portion of the costs of fees to be charged to the applicant in a accrediting entity with an opportunity
operating the Complaint Registry with contract between the parties and must to demonstrate that suspension or
fees collected by the accrediting entity provide notice to the applicant that no cancellation is unwarranted, in
pursuant to the schedule of fees portion of the fee will be refunded if the accordance with procedures established
approved by the Secretary as provided applicant fails to become accredited or in the agreement entered into pursuant
in § 96.8. approved. to § 96.9.
(c) An accrediting entity may be agency or temporarily accredited agency person provides both a child welfare
considered substantially out of pursuant to § 96.47(c) or 96.53(b). service and any adoption service in the
compliance under circumstances that (b) A public domestic authority may United States in a Convention adoption
include, but are not limited to: also offer, provide, or facilitate the case, it must be accredited, temporarily
(1) Failing to act in a timely manner provision of any such adoption service. accredited, or approved or operate as a
when presented with evidence that an (c) Neither conferral nor maintenance supervised provider unless the only
accredited agency or approved person is of accreditation, temporary adoption service provided is
substantially out of compliance with the accreditation, or approval, nor status as preparation of a home study and/or a
standards in subpart F of this part or a an exempted or supervised provider, child background study.
temporarily accredited agency is nor status as a public domestic authority (c) Legal services. An agency or
substantially out of compliance with the shall be construed to imply, warrant, or person does not need to be accredited,
standards in § 96.104; establish that, in any specific case, an temporarily accredited, approved, or to
(2) Accrediting or approving adoption service has been provided operate as a supervised provider if it is
significant numbers of agencies or consistently with the Convention, the providing only legal services, and not
persons whose performance results in IAA, or the regulations implementing providing any adoption services, in
intervention of the Secretary for the the IAA. Conferral and maintenance of connection with a Convention adoption.
purpose of suspension, cancellation, or accreditation, temporary accreditation, If the agency or person provides both a
debarment; or approval under this part establishes legal service and any adoption service
(3) Failing to perform its only that the accrediting entity has in the United States in a Convention
responsibilities fairly and objectively; concluded, in accordance with the adoption case, it must be accredited,
(4) Violating prohibitions on conflicts standards and procedures of this part, temporarily accredited, or approved or
of interest; that the agency or person conducts operate as a supervised provider unless
(5) Failing to meet its reporting adoption services in substantial the only adoption service provided is
requirements; compliance with the applicable preparation of a home study and/or a
(6) Failing to protect information or standards set forth in this part; it is not child background study. Nothing in this
documents that it receives in the course a guarantee that in any specific case the part shall be construed:
of performing its responsibilities; and accredited agency, temporarily (1) To permit an attorney to provide
(7) Failing to monitor frequently and accredited agency, or approved person both legal services and adoption
carefully the compliance of accredited is providing adoption services services in an adoption case where
agencies, temporarily accredited consistently with the Convention, the doing so is prohibited by State law; or
agencies, and approved persons with IAA, the regulations implementing the (2) To require any attorney who is
the home study requirements of the IAA, or any other applicable law, providing one or more adoption services
Convention, section 203(b)(1)(A)(ii) of whether Federal, State, or foreign. as part of his or her employment by a
the IAA (42 U.S.C. 14923(b)(1)(A)(ii)), Neither the Secretary nor any public domestic authority to be
and § 96.47. accrediting entity shall be responsible accredited or approved or operate as a
(d) An accrediting entity that is for any acts of an accredited agency, supervised provider.
subject to a final action of suspension or temporarily accredited agency, (d) Prospective adoptive parent(s)
cancellation may petition the United approved person, exempted provider, acting on own behalf. Prospective
States District Court for the District of supervised provider, or other entity adoptive parent(s) may act on their own
Columbia or the United States district providing services in connection with a behalf without being accredited,
court in the judicial district in which Convention adoption. temporarily accredited, or approved
the accrediting entity is located to set unless so acting is prohibited by State
aside the action as provided in section § 96.13 Circumstances in which law or the law of the Convention
204(d) of the IAA (42 U.S.C. 14924(d)). accreditation, approval, or supervision is country. In the case of a child
not required.
§ 96.11 [Reserved]. immigrating to the United States in
(a) Home studies and child connection with his or her adoption,
background studies. Home studies and such conduct must be permissible under
Subpart C—Accreditation and
child background studies, when the laws of the State in which the
Approval Requirements for the
performed by exempted providers, may prospective adoptive parent(s) reside
Provision of Adoption Services
be performed without accreditation, and the laws of the Convention country
§ 96.12 Authorized adoption service temporary accreditation, approval, or from which the parent(s) seek to adopt.
providers. supervision; provided, however, that an In the case of a child emigrating from
(a) Once the Convention has entered exempted provider’s home study must the United States in connection with his
into force for the United States, except be approved by an accredited agency or or her adoption, such conduct must be
as provided in section 505(b) of the IAA temporarily accredited agency in permissible under the laws of the State
(relating to transitional cases), an agency accordance with § 96.47(c), and an where the child resides and the laws of
or person may not offer, provide, or exempted provider’s child background the Convention country in which the
facilitate the provision of any adoption study must be approved by an parent(s) reside.
service in the United States in accredited agency or temporarily
connection with a Convention adoption accredited agency in accordance with § 96.14 Providing adoption services using
unless it is: § 96.53(b). other providers.
(1) An accredited agency, a (b) Child welfare services. An agency (a) Accreditation, temporary
temporarily accredited agency, or an or person does not need to be accreditation, and approval under this
approved person; accredited, temporarily accredited, part require that, in each Convention
(2) A supervised provider; or approved, or operate as a supervised adoption case, an accredited agency, a
(3) An exempted provider, if the provider if it is providing only child temporarily accredited agency, or an
exempted provider’s home study or welfare services, and not providing any approved person will be identified and
child background study will be adoption services, in connection with a act as the primary provider. If one
reviewed and approved by an accredited Convention adoption. If the agency or accredited agency, temporarily
accredited agency, or approved person (i) Has secured or is securing the employed with an accredited agency or
is providing all adoption services by necessary consent to termination of approved person) interviews Prospective
itself, it must act as the primary parental rights and to adoption, if the Adoptive Parent Y, obtains a criminal
background study, and checks the references
provider. If just one accredited agency, primary provider verifies consent
of Prospective Adoptive Parent Y, then
temporarily accredited agency, or pursuant to § 96.46(c); or composes a report and submits the report to
approved person is involved in (ii) Has prepared or is preparing a an accredited agency for use in a Convention
providing adoption services, the sole background study on a child in a case adoption. Social Worker X does not provide
accredited agency, temporarily involving immigration to the United any other services to Prospective Adoptive
accredited agency, or approved person States (incoming case) or a home study Parent Y. Social Worker X qualifies as an
must act as the primary provider. If on prospective adoptive parent(s) in a exempted provider and therefore need not be
adoption services in the Convention case involving emigration from the approved or operate as supervised provider.
United States (outgoing case), and a In contrast, Social Worker Z, in the United
case are being provided by more than
States, (not employed with an accredited
one accredited agency, temporarily report on the results of such a study, if agency or approved person) prepares a home
accredited agency, or approved person, the primary provider verifies the study study report for Prospective Adoptive
the agency or person that has child and report pursuant to § 96.46(c). Parent(s) W, and in addition re-enters the
placement responsibility, as evidenced (d) The primary provider is not house after Child V has been placed with
by the following, must act as the required to provide supervision or to Prospective Adoptive Parent(s) W to assess
primary provider throughout the case: assume responsibility for: how V and W are adjusting to life as a family.
(1) Entering into placement contracts (1) Public domestic authorities; or This assessment is post-placement
with prospective adoptive parent(s) to (2) Central Authorities, competent monitoring, which is an adoption service.
authorities, and public foreign Therefore, Social Worker Z would need to
provide child referral and placement;
authorities. become approved before providing this
(2) Accepting custody from a birth assessment for this Convention adoption or
parent or other legal custodian in a (e) The primary provider must adhere
else operate as a supervised provider. If an
Convention country for the purpose of to the standards contained in § 96.45 agency or person provides an adoption
placement for adoption; (Using supervised providers in the service in addition to a home study or child
(3) Assuming responsibility for liaison United States) when using supervised background study, the agency or person
with a Convention country’s Central providers in the United States and the needs to become accredited, temporarily
Authority or its designees with regard to applicable standards contained in accredited, approved, or supervised before
arranging an adoption; or § 96.46 (Using providers in Convention providing that adoption service.
(4) Receiving from or sending to a countries) when using providers outside Example 4. Child background study
Convention country information about a the United States. exemption. An employee of Agency X
interviews Child Y in the United States and
child that is under consideration for
§ 96.15 Examples. compiles a report concerning Child Y’s social
adoption, unless acting as a local service and developmental history for use in a
provider that conveys such information The following examples illustrate the
Convention adoption. Agency X provides no
to parent(s) on behalf of the primary rules of §§ 96.12 to 96.14: other adoption services on behalf of Child Y.
provider. Example 1. Identifying a child for adoption Agency X does not need to be accredited,
(b) Pursuant to § 96.44, in the case of and arranging an adoption. Agency X temporarily accredited, approved, or
accredited agencies or approved identifies children eligible for adoption in supervised. Agency X is only conducting and
persons, and § 96.104(g), in the case of the United States on a TV program in an creating a child background study, and
temporarily accredited agencies, the effort to recruit prospective adoptive therefore is an exempted provider. In
primary provider may only use the parent(s). A couple in a Convention country contrast, an employee of Agency Z interviews
calls Agency X about one of the children. Child W in the United States and creates a
following to provide adoption services
Agency X refers them to an agency or person child background study for use in a
in the United States: in the United States who arranges Convention adoption. Agency Z subsequently
(1) A supervised provider, including intercountry adoptions. Agency X does not identifies prospective adoptive parent(s) and
an accredited agency, temporarily require accreditation, temporarily arranges a new adoption when Child W’s
accredited agency, or approved person; accreditation, approval or supervision previous adoption becomes disrupted.
(2) An exempted provider, if the because it is not both identifying and Agency Z needs to be accredited, temporarily
exempted provider’s home study or arranging the adoption. In contrast, Agency accredited, approved, or supervised before
child background study will be Y, located in the United States, provides providing this service. If an agency or person
reviewed and approved by an accredited information about children eligible for provides an adoption service in addition to
agency or temporarily accredited agency adoption in a Convention country on a a child background study or home study, the
website and then arranges for interested U.S. agency or person needs to be accredited,
pursuant to § 96.47(c) or § 96.53(b); or
parents to adopt those children. Agency Y temporarily accredited, approved, or
(3) A public domestic authority.
must be accredited, temporarily accredited, supervised before providing the additional
(c) Pursuant to § 96.44 of subpart F, in approved, or supervised because, in addition service.
the case of accredited agencies or to identifying children eligible for adoption, Example 5. Home study and child welfare
approved persons, and § 96.104(g) of it is also helping to arrange the adoption. services exemptions. Agency X interviews
subpart N, in the case of temporarily Example 2. Child welfare services Prospective Adoptive Parent Y, obtains a
accredited agencies, the primary exemption. Doctor X evaluates the medical criminal background check, checks the
provider may only use the following to records and a video of Child Y. The references of Prospective Adoptive Parent Y,
provide adoption services in a evaluation will be used in a Convention then composes a home study and submits it
Convention country: adoption as part of the placement of Child Y to an accredited agency for use in a
(1) A Central Authority, competent and is the only service that Doctor X provides Convention adoption in the United States.
in the United States with regard to Child Y’s Parent Y later joins a post-adoption support
authority, or a public foreign authority;
adoption. Doctor X (not employed with an group for adoptive parents sponsored by
(2) A foreign supervised provider, accredited agency or approved person) does Agency X. If Agency X performs no other
including a provider accredited by the not need to be approved or supervised adoption services, Agency X does not need
Convention country; or because she is not providing an adoption to be accredited, temporarily accredited,
(3) A foreign provider (agency, service as defined in § 96.2. approved, or supervised. If an agency or
person, or other non-governmental Example 3. Home study exemption. Social person provides a home study or child
entity) who Worker X, in the United States, (not background study as well as other services in
the United States that do not require Example 9. Post-adoption services. as a foreign supervised provider in
accreditation, temporary accreditation, Convention Country H requires that post- accordance with § 96.46(a) and (b) or verify
approval, or supervision, and no other adoption reports be completed and sent to its the consents Facilitator Y secured, in
adoption services, the agency or person is an Central Authority every year until adopted accordance with § 96.46(c).
exempted provider. children reach the age of 18. Agency X
Example 6. Exempted provider. Agency X provides support groups and a newsletter for § 96.16 Public domestic authorities.
interviews Prospective Adoptive Parent(s) Y, U.S. parents that have adopted children from
obtains a criminal background check, checks Country H and encourages parents to Public domestic authorities are not
the references of Prospective Adoptive complete their post-adoption reports required to become accredited to be able
Parent(s) Y, and then composes a home study annually. Agency X does not need to be to provide adoption services in
and submits the report to an accredited accredited, temporarily accredited, approved, Convention adoption cases, but must
agency. In addition, Agency X interviews or supervised because it is providing only comply with the Convention, the IAA,
Child Z and compiles a report concerning post-adoption services. Post-adoption and other applicable law when
Child Z’s social and developmental history. services are not included in the definition of
All of Agency X’s work is done in the United
providing services in a Convention
adoption services, and therefore, do not
States. Both reports will be used in a trigger accreditation/approval requirements
adoption case.
Convention adoption. If Agency X performs of the IAA and this part. § 96.17 Effective date of accreditation and
no other adoption services, Agency X does Example 10. Assuming custody and approval requirements.
not need to be accredited, temporarily providing services after a disruption. Agency
accredited, approved, or supervised. If an X provides counseling for Prospective The Secretary will publish a
agency or person provides a home study and Adoptive Parent(s) Y and for Child W document in the Federal Register
child background study as well as other pending the completion of Child W’s announcing the date on which the
services that do not require accreditation, Convention adoption. The adoption is Convention will enter into force for the
temporary accreditation, approval or eventually disrupted. Agency X helps recruit United States. As of that date, the
supervision, and no other adoption services, and identify new prospective adoptive
the agency or person is an exempted regulations in subpart C of this part will
parent(s) for Child W, but it is Agency P that govern Convention adoptions between
provider. assumes custody of Child W and places him
Example 7. Legal services exemption. the United States and Convention
in foster care until an alternative adoptive
Attorney X (not employed with an accredited placement can be found. Agency X is not countries, and agencies or persons
agency or approved person) provides advice required to be accredited, temporarily providing adoption services must
and counsel to Prospective Adoptive accredited, approved, or supervised because comply with § 96.12 and applicable
Parent(s) Y on filling out DHS paperwork Federal regulations. The Secretary will
it is not providing an adoption service in the
required for a Convention adoption. Among
other papers, Attorney X prepares an
United States as defined in § 96.2. Agency P, maintain for the public a current listing
on the other hand, is providing an adoption of Convention countries.
affidavit of consent to termination of parental
service and would have to be accredited,
rights and to adoption of Child W to be
temporarily accredited, approved, or Subpart D—Application Procedures for
signed by the birth mother in the United
States. Attorney X must be approved or supervised. Accreditation and Approval
supervised because securing consent to Example 11. Making non-judicial
termination of parental rights is an adoption determinations of best interest of child and § 96.18 Scope.
service. In contrast, Attorney Z (not appropriateness of adoptive placement of (a) Agencies are eligible to apply for
employed with an accredited agency or child. Agency X receives information about
and a videotape of Child W from the
‘‘accreditation’’ or ‘‘temporary
approved person) assists Adoptive Parent(s) accreditation.’’ Persons are eligible to
T to complete an adoption in the State in institution where Child W lives in a
Convention country. Based on the age, sex, apply for ‘‘approval.’’ Temporary
which they reside, after they have been
and health problems of Child W, Agency X accreditation is governed by the
granted an adoption in Child V’s Convention
country of origin. Attorney Z is exempt from matches Prospective Adoptive Parent(s) Y provisions in subpart N of this part.
approval or supervision because she is with Child W. Prospective Adoptive Parent(s) Unless otherwise provided in subpart N,
providing legal services, but no adoption Y receive a referral from Agency X and agree the provisions of this subpart do not
services. to accept the referral and proceed with the apply to agencies seeking temporary
Example 8. Post-placement monitoring. A adoption of Child W. Agency X determines accreditation. Applications for full
court in a Convention country has granted that Prospective Adoptive Parent(s) Y are a
good placement for Child W and notifies the
accreditation rather than temporary
custody of Child W to Prospective Adoptive accreditation will be processed in
Parent(s) Y pending the completion of W’s competent authority in W’s country of origin
that it has found a match for Child W and accordance with § 96.20 and § 96.21.
adoption. Agency X interviews both
Prospective Adoptive Parent(s) Y and Child will start preparing adoption paperwork. All (b) An agency or person seeking to be
W in their home in the United States. Agency of Agency X’s services are provided in the accredited or approved as of the time
X gathers information on the adjustment of United States. Agency X is performing an the Convention enters into force for the
Child W as a member of the family and adoption service and must be accredited, United States, and to be included on the
inquires into the social and educational temporarily accredited, approved, or initial list of accredited agencies and
progress of Child W. Agency X must be supervised. approved persons that the Secretary will
accredited, temporarily accredited, approved, Example 12. Securing necessary consent to
termination of parental rights and to
deposit with the Permanent Bureau of
or supervised. Agency X’s activities
adoption. Facilitator Y is accredited by the Hague Conference on Private
constitute post-placement monitoring, which
is an adoption service. In contrast, if Person Convention Country Z. He has contacts at International Law, must follow the
Z provided counseling for Prospective several orphanages in Convention Country Z special provision contained in § 96.19.
Adoptive Parent(s) Y and/or Child W, but and helps Agency X match children eligible (c) If an agency or person is
provided no adoption services in the United for adoption with prospective adoptive reapplying for accreditation or approval
States to the family, Person Z would not need parent(s) in the United States. Facilitator Y following cancellation of its
to be approved or supervised. Post-placement works with the institution that is the legal accreditation or approval by an
counseling is different than post-placement guardian of Child W in order to get the accrediting entity or refusal by an
monitoring because it does not relate to documents showing the institution’s legal
consent to the adoption of Child W. Agency
accrediting entity to renew its
evaluating the adoption placement. Post-
placement counseling is not an adoption X is the only U.S. agency providing adoption accreditation or approval, it must
service and does not trigger the accreditation/ services in the case. Agency X must be comply with the procedures in § 96.78.
approval requirements of the IAA and this accredited, temporarily accredited, or (d) If an agency or person that has
part. approved and must either treat Facilitator Y been accredited or approved is seeking
renewal, it must comply with the time may submit an application at any Temporary accreditation is governed by
procedures in § 96.63. time, with the required fee(s), to an the provisions in subpart N of this part.
accrediting entity with jurisdiction to Unless otherwise provided in subpart N,
§ 96.19 Special provision for agencies and evaluate the application. If an agency or the provisions of this subpart do not
persons seeking to be accredited or
approved as of the time the Convention
person seeks to be accredited or apply to agencies seeking temporary
enters into force for the United States. approved by the deadline for initial accreditation.
accreditation or approval, an agency or
(a) The Secretary will establish and § 96.24 Procedures for evaluating
person must comply with the
announce, by public notice in the applicants for accreditation or approval.
procedures in § 96.19.
Federal Register, a transitional (b) The accrediting entity must (a) The accrediting entity must
application deadline. An agency or establish and follow uniform designate at least two evaluators to
person seeking to be accredited or application procedures and must make evaluate an agency or person for
approved as of the time the Convention information about those procedures accreditation or approval. The
enters into force for the United States available to agencies and persons that accrediting entity’s evaluators must
must submit an application to an are considering whether to apply for have expertise in intercountry adoption,
accrediting entity with jurisdiction to accreditation or approval. An standards evaluation, or experience
evaluate its application, with the accrediting entity must evaluate the with the management or oversight of
required fee(s), by the transitional child welfare organizations and must
applicant for accreditation or approval
application deadline. The Secretary will also meet any additional qualifications
in a timely fashion.
subsequently establish and announce a required by the Secretary in the
date by which such agencies and § 96.21 Choosing an accrediting entity. agreement with the accrediting entity.
persons must complete the accreditation (a) An agency that seeks to become (b) To evaluate the agency’s or
or approval process in time to be accredited must apply to an accrediting person’s eligibility for accreditation or
accredited or approved at the time the entity that is designated to provide approval, the accrediting entity must:
Convention enters into force for the accreditation services and that has (1) Review the agency’s or person’s
United States (deadline for initial jurisdiction over its application. A written application and supporting
accreditation or approval). person that seeks to become approved documentation;
(b) The accrediting entity must use its (2) Verify the information provided by
must apply to an accrediting entity that
best efforts to provide a reasonable the agency or person by examining
is designated to provide approval
opportunity for an agency or person that underlying documentation;
services and that has jurisdiction over (3) Consider any complaints received
applies by the transitional application its application. The agency or person by the accrediting entity pursuant to
deadline to complete the accreditation may apply to only one accrediting entity subpart J of this part; and
or approval process by the deadline for at a time. (4) Conduct site visit(s).
initial accreditation or approval. Only (b)(1) If the agency or person is (c) The site visit(s) may include, but
those agencies and persons that are applying for accreditation or approval need not be limited to, interviews with
accredited or approved by the deadline pursuant to this part for the first time, birth parents, adoptive parent(s),
for initial accreditation or approval will it may apply to any accrediting entity prospective adoptive parent(s), and
be included on the initial list of with jurisdiction over its application. adult adoptee(s) served by the agency or
accredited agencies and approved However, the agency or person must person, interviews with the agency’s or
persons that the Secretary will deposit apply to the same accrediting entity that person’s employees, and interviews
with the Permanent Bureau of the Hague handled its prior application when it with other individuals knowledgeable
Conference on Private International next applies for accreditation or about the agency’s or person’s provision
Law. approval, if the agency or person: of adoption services. It may also include
(c) The accrediting entity may, in its (i) Has been denied accreditation or a review of on-site documents. The
discretion, permit an agency or person approval; accrediting entity must, to the extent
that fails to submit an application by the (ii) Has withdrawn its application in practicable, advise the agency or person
transitional application deadline to anticipation of denial; in advance of the type of documents it
attempt to complete the accreditation or (iii) Has had its accreditation or wishes to review during the site visit.
approval process in time to be included approval cancelled by an accrediting The accrediting entity must require at
on the initial list; however, such an entity or the Secretary; least one of the evaluators to participate
agency or person is not assured an (iv) Has been temporarily debarred by
in each site visit. The accrediting entity
opportunity to complete the the Secretary; or
must determine the number of
accreditation or approval process in (v) Has been refused renewal of its
evaluators that participate in a site visit
time to be included on the initial list. accreditation or approval by an
in light of factors such as:
The accrediting entity must give priority accrediting entity. (1) The agency’s or person’s size;
to applicants that filed by the (2) If the prior accrediting entity is no (2) The number of adoption cases it
transitional application deadline. If longer providing accreditation or handles;
such an agency or person succeeds in approval services, the agency or person (3) The number of sites the
completing the accreditation or may apply to any accrediting entity with accrediting entity decides to visit; and
approval process in time to be included jurisdiction over its application. (4) The number of individuals
on the initial list, it will be treated as § 96.22 [Reserved] working at each site.
an agency or person that applied by the (d) Before deciding whether to
transitional application deadline for the Subpart E—Evaluation of Applicants accredit an agency or approve a person,
purposes of § 96.58 and § 96.60(b). for Accreditation and Approval the accrediting entity may, in its
discretion, advise the agency or person
§ 96.20 First-time application procedures § 96.23 Scope. of any deficiencies that may hinder or
for accreditation and approval. The provisions in this subpart govern prevent its accreditation or approval
(a) Agencies or persons seeking the evaluation of agencies and persons and defer a decision to allow the agency
accreditation or approval for the first for accreditation or approval. or person to correct the deficiencies.
§ 96.25 Access to information and agreement with Secretary and this part, substantial compliance with the
documents requested by the accrediting or to provide information to the standards contained in subpart F of this
entity. Secretary, the Complaint Registry, or an part, unless the accrediting entity
(a) The agency or person must give appropriate Federal, State, or local determines that it is still necessary to
the accrediting entity access to authority, including, but not limited to, measure capacity because adequate
information and documents, including a public domestic authority or local law evidence of actual performance is not
adoption case files and proprietary enforcement authority unless: available.
information, that it requires or requests (1) Otherwise authorized by the (c) The standards contained in
to evaluate an agency or person for agency or person in writing; subpart F of this part apply during all
accreditation or approval and to perform (2) Otherwise required under Federal the stages of accreditation and approval,
its oversight, enforcement, renewal, data or State laws; or including, but not limited to, when the
collection, and other functions. The (3) Required pursuant to subpart M of accrediting entity is evaluating an
agency or person must also cooperate this part. applicant for accreditation or approval,
with the accrediting entity by making (c) Unless the names and other when it is determining whether to
employees available for interviews upon information that identifies the birth renew an agency’s or person’s
request. parent(s), prospective adoptive accreditation or approval, when it is
(b) Accrediting entity review of parent(s), and adoptee(s) are requested monitoring the performance of an
adoption case files pursuant to by the accrediting entity for an accredited agency or approved person,
paragraph (a) shall be limited to articulated reason, the agency or person and when it is taking adverse action
Convention adoption case files, except may withhold from the accrediting against an accredited agency or
that, in the case of first-time applicants entity such information and substitute approved person. Except as provided in
for accreditation or approval, the individually assigned codes in the § 96.25 and paragraphs (e) and (f) of this
accrediting entity may review adoption documents it provides. The accrediting section, the accrediting entity may only
case files related to non-Convention entity must have appropriate safeguards use the standards contained in subpart
cases for purposes of assessing the to protect from unauthorized use and F of this part when determining whether
agency’s or person’s capacity to comply disclosure of any information in its files an agency or person may be granted or
with record-keeping and data- that identifies birth parent(s), permitted to maintain Convention
management standards in subpart F of prospective adoptive parent(s), and accreditation or approval.
this part. The accrediting entity shall adoptee(s). The accrediting entity must (d) The Secretary will ensure that
permit the agency or person to redact ensure that its officers, employees, each accrediting entity performs its
names and other information that contractors, and evaluators who have accreditation and approval functions
identifies birth parent(s), prospective access to information or documents using only a method approved by the
adoptive parent(s), and adoptee(s) from provided by the agency or person have Secretary that is substantially the same
such non-Convention adoption case signed a non-disclosure agreement as the method approved for use by each
files prior to their inspection by the reflecting the requirements of § 96.26(a) other accrediting entity. Each such
accrediting entity. and (b). The accrediting entity must method will include: an assigned value
(c) If an agency or person fails to maintain an accurate record of the for each standard (or element of a
provide requested documents or agency’s or person’s application, the standard); a method of rating an
information, or to make employees supporting documentation, and the agency’s or person’s compliance with
available as requested, the accrediting basis for its decision. each applicable standard; and a method
entity may deny accreditation or of evaluating whether an agency’s or
approval or, in the case of an accredited § 96.27 Substantive criteria for evaluating person’s overall compliance with all
applicants for accreditation or approval. applicable standards establishes that the
agency, temporarily accredited agency,
or approved person, take appropriate (a) The accrediting entity may not agency or person is in substantial
adverse action against the agency or grant an agency accreditation or a compliance with the standards and can
person solely on that basis. person approval, or permit an agency’s be accredited, temporarily accredited, or
or person’s accreditation or approval to approved. The Secretary will ensure
§ 96.26 Protection of information and be maintained, unless the agency or that the value assigned to each standard
documents by the accrediting entity. person demonstrates to the satisfaction reflects the relative importance of that
(a) The accrediting entity must protect of the accrediting entity that it is in standard to compliance with the
from unauthorized use and disclosure substantial compliance with the Convention and the IAA and is
all documents and information about standards in subpart F of this part. consistent with the value assigned to the
the agency or person it receives (b) When the agency or person makes standard by other accrediting entities.
including, but not limited to, documents its initial application for accreditation The accrediting entity must advise
and proprietary information about the or approval under the standards applicants of the value assigned to each
agency’s or person’s finances, contained in subpart F of this part, the standard (or elements of each standard)
management, and professional practices accrediting entity may measure the at the time it provides applicants with
received in connection with the capacity of the agency or person to the application materials.
performance of its accreditation or achieve substantial compliance with (e) If an agency or person has
approval, oversight, enforcement, these standards where relevant evidence previously been denied accreditation or
renewal, data collection, or other of its actual performance is not yet approval, has withdrawn its application
functions under its agreement with the available. Once the agency or person has in anticipation of denial, has had its
Secretary and this part. been accredited or approved pursuant to temporary accreditation withdrawn, or
(b) The documents and information this part, the accrediting entity must, for is reapplying for accreditation or
received may not be disclosed to the the purposes of monitoring, renewal, approval after cancellation, refusal to
public and may be used only for the enforcement, and reapplication after renew, or temporary debarment, the
purpose of performing the accrediting adverse action, consider the agency’s or accrediting entity may take the reasons
entity’s accreditation or approval person’s actual performance in deciding underlying such actions into account
functions and related tasks under its whether the agency or person is in when evaluating the agency or person
for accreditation or approval, and may State and that are exempted providers or (e) The agency or person discloses to
deny accreditation or approval on the acting as supervised providers; or the accrediting entity the following
basis of the previous action. (2) Through public domestic information:
(f) If an agency or person that has an authorities. (1) Any other names by which the
ownership or control interest in the agency or person is or has been known,
(d) In the case of a person, the
applicant, as that term is defined in under either its current or any former
individual or for-profit entity is not
section 1124 of the Social Security Act form of organization, and the addresses
prohibited by State law from providing
(42 U.S.C. 1320a–3), has been debarred and phone numbers used when such
adoption services in any State where it
pursuant to § 96.85, the accrediting names were used;
is providing adoption services, and does
entity may take into account the reasons (2) The name, address, and phone
not provide adoption services in
underlying the debarment when number of each current director,
Convention countries that prohibit
evaluating the agency or person for manager, and employee of the agency or
individuals or for-profit entities from
accreditation or approval, and may deny person, and, for any such individual
providing adoption services.
accreditation or approval or refuse to who previously served as a director,
renew accreditation or approval on the § 96.31 Corporate structure. manager, or employee of another
basis of the debarment. provider of adoption services, the name,
(a) The agency qualifies for nonprofit
(g) The standards contained in address, and phone number of such
tax treatment under section 501(c)(3) of
subpart F of this part do not eliminate other provider; and
the Internal Revenue Code of 1986, as
the need for an agency or person to (3) The name, address, and phone
amended, or for nonprofit status under
comply fully with the laws of the number of any entity it uses or intends
the laws of any State.
jurisdictions in which it operates. An to use as a supervised provider.
agency or person must provide adoption (b) The person is an individual or is
services in Convention cases consistent a for-profit entity organized as a Financial and Risk Management
with the laws of any State in which it corporation, company, association, firm,
§ 96.33 Budget, audit, insurance, and risk
operates and with the Convention and partnership, society, or joint stock assessment requirements.
the IAA. Persons that are approved to company, or other legal entity under the
laws of any State. (a) The agency or person operates
provide adoption services may only under a budget approved by its
provide such services in States that do § 96.32 Internal structure and oversight. governing body, if applicable, for
not prohibit persons from providing management of its funds. The budget
adoption services. Nothing in the (a) The agency or person has (or, in
the case of an individual, is) a chief discloses all remuneration (including
application of subparts E and F should perquisites) paid to the agency’s or
be construed to require a State to allow executive officer or equivalent official
who is qualified by education, adoption person’s board of directors, managers,
persons to provide adoption services if employees, and supervised providers.
State law does not permit them to do so. service experience, and management
credentials to ensure effective use of (b) The agency’s or person’s finances
§ 96.28 [Reserved] resources and coordinated delivery of are subject to annual internal review
the services provided by the agency or and oversight and are subject to
Subpart F—Standards for Convention person, and has authority and independent audits every four years.
Accreditation and Approval responsibility for management and The agency or person submits copies of
oversight of the staff and any supervised internal financial review reports for
§ 96.29 Scope. inspection by the accrediting entity each
providers in carrying out the adoption-
The provisions in this subpart provide year.
related functions of the organization.
the standards for accrediting agencies (c) The agency or person submits
and approving persons. Temporary (b) The agency or person has a board copies of each audit, as well as any
accreditation is governed by the of directors or a similar governing body accompanying management letter or
provisions in subpart N of this part. that establishes and approves its qualified opinion letter, for inspection
Unless otherwise provided in subpart N mission, policies, budget, and programs; by the accrediting entity.
of this part, the provisions in this provides leadership to secure the (d) The agency or person meets the
subpart do not apply to agencies seeking resources needed to support its financial reporting requirements of
temporary accreditation. programs; includes one or more Federal and State laws and regulations.
individuals with experience in (e) The agency’s or person’s balance
Licensing and Corporate Governance adoption, including but not limited to, sheets show that it operates on a sound
§ 96.30 State licensing. adoptees, birth parents, prospective financial basis and maintains on average
adoptive parent(s), and adoptive sufficient cash reserves, assets, or other
(a) The agency or person is properly
parents; and appoints and oversees the financial resources to meet its operating
licensed or otherwise authorized by
performance of its chief executive expenses for two months, taking into
State law to provide adoption services
officer or equivalent official. This account its projected volume of cases
in at least one State.
standard does not apply where the and its size, scope, and financial
(b) The agency or person follows
person is an individual practitioner. commitments. The agency or person has
applicable State licensing and
regulatory requirements in all (c) The agency or person keeps a plan to transfer its Convention cases
jurisdictions in which it provides permanent records of the meetings and if it ceases to provide or is no longer
adoption services. deliberations of its governing body and permitted to provide adoption services
(c) If it provides adoption services in of its major decisions affecting the in Convention cases. The plan includes
a State in which it is not itself licensed delivery of adoption services. provisions for an organized closure and
or authorized to provide such services, (d) The agency or person has in place reimbursement to clients of funds paid
the agency or person does so only: procedures and standards, pursuant to for services not yet rendered.
(1) Through agencies or persons that § 96.45 and § 96.46, for the selection, (f) If it accepts charitable donations,
are licensed or authorized by State law monitoring, and oversight of supervised the agency or person has safeguards in
to provide adoption services in that providers. place to ensure that such donations do
not influence child placement decisions (e) Any other compensation paid to domestic authorities), criminal
in any way. the agency’s or person’s directors or charge(s), child abuse charge(s), or
(g) The agency or person assesses the members of its governing body is not lawsuit(s) against the agency or person,
risks it assumes, including by reviewing unreasonably high in relation to the related to the provision of child welfare
information on the availability of services rendered, taking into account or adoption-related services, and the
insurance coverage for Convention- the same factors listed in paragraph (d) basis and disposition of such action(s).
related activities. The agency or person of this section and its for-profit or (7) Any instances where the agency or
uses the assessment to meet the nonprofit status. person has been found guilty of any
requirements in paragraph (h) of this (f) The agency or person identifies all crime under Federal, State, or foreign
section and as the basis for determining vendors to whom clients are referred for law or has been found to have
the type and amount of professional, non-adoption services and discloses to committed any civil or administrative
general, directors’ and officers’, errors the accrediting entity any corporate or violation involving financial
and omissions, and other liability financial arrangements and any family irregularities under Federal, State, or
insurance to carry. relationships with such vendors. foreign law;
(h) The agency or person maintains (8) For the prior five-year period, any
Ethical Practices and Responsibilities instances where the agency or person
professional liability insurance in
amounts reasonably related to its § 96.35 Suitability of agencies and persons has filed for bankruptcy; and
exposure to risk, but in no case in an to provide adoption services consistent (9) Descriptions of any businesses or
amount less than $1,000,000 in the with the Convention. activities that are inconsistent with the
aggregate. (a) The agency or person provides principles of the Convention and that
(i) The agency’s or person’s chief adoption services ethically and in have been or are currently carried out by
executive officer, chief financial officer, accordance with the Convention’s the agency or person, affiliate
and other officers or employees with principles of: organizations, or by any organization in
direct responsibility for financial (1) Ensuring that intercountry which the agency or person has an
transactions or financial management of adoptions take place in the best interests ownership or controlling interest.
of children; and (c) In order to permit the accrediting
the agency or person are bonded.
(2) Preventing the abduction, entity to evaluate the suitability of an
§ 96.34 Compensation. exploitation, sale, or trafficking of agency or person for accreditation or
(a) The agency or person does not children. approval, the agency or person (for its
compensate any individual who (b) In order to permit the accrediting current or any former names) discloses
provides intercountry adoption services entity to evaluate the suitability of an to the accrediting entity the following
with an incentive fee or contingent fee agency or person for accreditation or information about its individual
for each child located or placed for approval, the agency or person discloses directors, officers, and employees:
adoption. to the accrediting entity the following (1) For the prior ten-year period, any
information related to the agency or conduct by any such individual related
(b) The agency or person compensates
person, under its current or any former to the provision of adoption-related
its directors, officers, employees, and
name: services that was subject to external
supervised providers who provide
(1) Any instances in which the agency disciplinary proceeding(s);
intercountry adoption services only for (2) Any convictions or current
or person has lost the right to provide
services actually rendered and only on investigations of any such individual
adoption services in any State or
a fee-for-service, hourly wage, or salary who is in a senior management position
country, including the basis for such
basis rather than a contingent fee basis. for acts involving financial
action(s);
(c) The agency or person does not (2) Any instances in which the agency irregularities;
make any payments, promise payment, or person was debarred or otherwise (3) The results of a State criminal
or give other consideration to any denied the authority to provide background check and a child abuse
individual directly or indirectly adoption services in any State or clearance for any such individual in the
involved in provision of adoption country, including the basis and United States in a senior management
services in a particular case, except for disposition of such action(s); position or who works directly with
salaries or fees for services actually (3) Any licensing suspensions for parent(s) and/or children (unless such
rendered and reimbursement for costs cause or other negative sanctions by checks have been included in the State
incurred. This does not prohibit an oversight bodies against the agency or licensing process); and
agency or person from providing in-kind person, including the basis and (4) A completed FBI Form FD–258 for
or other donations not intended to disposition of such action(s); each such individual in the United
influence or affect a particular adoption. (4) For the prior ten-year period, any States in a senior management position
(d) The fees, wages, or salaries paid to disciplinary action(s) against the agency or who works directly with parent(s)
the directors, officers, employees, and or person by a licensing or accrediting and/or children, which the agency or
supervised providers of the agency or body, including the basis and person must keep on file in case future
person are not unreasonably high in disposition of such action(s); allegations warrant submission of the
relation to the services actually (5) For the prior ten-year period, any form for a Federal criminal background
rendered, taking into account the written complaint(s) related to the check of any such individual.
country in which the adoption services provision of adoption-related services, (5) Descriptions of any businesses or
are provided and norms for including the basis and disposition of activities that are inconsistent with the
compensation within the intercountry such complaints, against the agency or principles of the Convention and that
adoption community in that country, to person filed with any State or Federal or are known to have been or are currently
the extent that such norms are known to foreign regulatory body and of which carried out by current individual
the accrediting entity; the location, the agency or person was notified; directors, officers, or employees of the
number, and qualifications of staff; (6) For the prior ten-year period, any agency or person.
workload requirements; budget; and size known past or pending investigation(s) (d) In order to permit the accrediting
of the agency or person. (by Federal authorities or by public entity to evaluate the suitability of a
person who is an individual practitioner Professional Qualifications and and children’s services, adoption, or
for approval, the individual: Training for Employees intercountry adoption; and
(1) Provides the results of a State (3) Are supervised by an employee of
§ 96.37 Education and experience the agency or person who meets the
criminal background check and a child requirements for social service personnel.
requirements for supervisors in
abuse clearance to the accrediting (a) The agency or person only uses paragraph (d) of this section.
entity; employees with appropriate (f) Home studies. The agency’s or
(2) Completes and retains a FBI Form qualifications and credentials to person’s employees who conduct home
FD–258 on file in case future allegations perform, in connection with a studies:
warrant submission of the form for a Convention adoption, adoption-related (1) Are authorized or licensed to
Federal criminal background check; social service functions that require the complete a home study under the laws
application of clinical skills and of the States in which they practice;
(3) If a lawyer, for every jurisdiction judgment (home studies, child
in which he or she has ever been (2) Meet the INA requirements for
background studies, counseling, parent home study preparers in 8 CFR 204.3(b);
admitted to the Bar, provides a preparation, post-placement, and other and
certificate of good standing or an similar services). (3) Are supervised by an employee of
explanation of why he or she is not in (b) The agency’s or person’s the agency or person who meets the
good standing, accompanied by any employees meet any State licensing or requirements in paragraph (d) of this
relevant documentation and regulatory requirements for the services section.
immediately reports to the accrediting they are providing. (g) Child background studies. The
entity any disciplinary action (c) The agency’s or person’s executive agency’s or person’s employees who
considered by a State bar association, director, the supervisor overseeing a prepare child background studies:
regardless of whether the action relates case, or the social service employee (1) Are authorized or licensed to
to intercountry adoption; and providing adoption-related social complete a child background study
(4) If a social worker, for every services that require the application of under the laws of the States in which
clinical skills and judgment (home they practice; and
jurisdiction in which he or she has been
studies, child background studies, (2) Are supervised by an employee of
licensed, provides a certificate of good
counseling, parent preparation, post- the agency or person who meets the
standing or an explanation of why he or placement, and other similar services)
she is not in good standing, requirements in paragraph (d) of this
has experience in the professional section.
accompanied by any relevant delivery of intercountry adoption
documentation. services. § 96.38 Training requirements for social
(e) In order to permit the accrediting (d) Supervisors. The agency’s or service personnel.
entity to monitor the suitability of an person’s social work supervisors have (a) The agency or person provides
agency or person, the agency or person prior experience in family and newly hired employees who have
must disclose any changes in the children’s services, adoption, or adoption-related responsibilities
information required by § 96.35 within intercountry adoption and either: involving the application of clinical
thirty business days of learning of the (1) A master’s degree from an skills and judgment (home studies,
change. accredited program of social work; child background studies, counseling
(2) A master’s degree (or doctorate) in services, parent preparation, post-
§ 96.36 Prohibition on child buying. a related human service field, including, placement and other similar services)
but not limited to, psychology, with a comprehensive orientation to
(a) The agency or person prohibits its psychiatry, psychiatric nursing, intercountry adoption that includes
employees and agents from giving counseling, rehabilitation counseling, or training on:
money or other consideration, directly pastoral counseling; or (1) The requirements of the
or indirectly, to a child’s parent(s), other (3) In the case of a social work Convention, the IAA, the regulations
individual(s), or an entity as payment supervisor who is or was an incumbent implementing the IAA, and other
for the child or as an inducement to at the time the Convention enters into applicable Federal regulations;
release the child. If permitted or force for the United States, the (2) The INA regulations applicable to
required by the child’s country of origin, supervisor has significant skills and the immigration of children adopted
an agency or person may remit experience in intercountry adoption and from a Convention country;
reasonable payments for activities has regular access for consultation (3) The adoption laws of any
related to the adoption proceedings, pre- purposes to an individual with the Convention country where the agency or
birth and birth medical costs, the care qualifications listed in paragraph (d)(1) person provides adoption services;
of the child, the care of the birth mother or paragraph (d)(2) of this section. (4) Relevant State laws;
while pregnant and immediately (e) Non-supervisory employees. The (5) Ethical considerations in
following birth of the child, or the agency’s or person’s non-supervisory intercountry adoption and prohibitions
provision of child welfare and child employees providing adoption-related on child-buying;
protection services generally. Permitted social services that require the (6) The agency’s or person’s goals,
or required contributions shall not be application of clinical skills and ethical and professional guidelines,
judgment other than home studies or organizational lines of accountability,
remitted as payment for the child or as
child background studies have either: policies, and procedures; and
an inducement to release the child.
(1) A master’s degree from an (7) The cultural diversity of the
(b) The agency or person has written accredited program of social work or in population(s) served by the agency or
policies and procedures in place another human service field; or person.
reflecting the prohibitions in paragraph (2) A bachelor’s degree from an (b) In addition to the orientation
(a) of this section and reinforces them in accredited program of social work; or a training required under paragraph (a) of
its employee training programs. combination of a bachelor’s degree in this section, the agency or person
any field and prior experience in family provides initial training to newly hired
or current employees whose (a) and (b) of this section only where the children eligible for adoption only
responsibilities include providing employee has demonstrated experience where:
adoption-related social services that with intercountry adoption and (1) Such use is not prohibited by
involve the application of clinical skills knowledge of the Convention and the applicable State or Federal law or by the
and judgment (home studies, child IAA. laws of the child’s country of origin;
background studies, counseling (2) Such use is subject to controls to
Information Disclosure, Fee Practices, avoid misuse and links to any sites that
services, parent preparation, post-
and Quality Control Policies and reflect practices that involve the sale,
placement and other similar services)
Practices abduction, exploitation, or trafficking of
that addresses:
(1) The factors in the countries of § 96.39 Information disclosure and quality children;
origin that lead to children needing control practices. (3) Such use, if it includes
adoptive families; (a) The agency or person fully photographs, is designed to identify
(2) Feelings of separation, grief, and discloses in writing to the general children either who are currently
loss experienced by the child with public upon request and to prospective waiting for adoption or who have
respect to the family of origin; client(s) upon initial contact: already been adopted or placed for
(3) Attachment and post-traumatic (1) Its adoption service policies and adoption (and who are clearly so
stress disorders; practices, including general eligibility identified); and
(4) Psychological issues facing (4) Such use does not serve as a
criteria and fees;
children who have experienced abuse or substitute for the direct provision of
(2) The supervised providers with
neglect and/or whose parents’ rights adoption services, including services to
whom the prospective client(s) can
have been terminated because of abuse the child, the prospective adoptive
expect to work in the United States and
or neglect; parent(s), and/or the birth parent(s).
(5) The impact of institutionalization in the child’s country of origin and the
on child development; usual costs associated with their § 96.40 Fee policies and procedures.
(6) Outcomes for children placed for services; and (a) The agency or person provides to
adoption internationally and the (3) A sample written adoption all applicants, prior to application, a
benefits of permanent family services contract substantially like the written schedule of expected total fees
placements over other forms of one that the prospective client(s) will be and estimated expenses and an
government care; expected to sign should they proceed. explanation of the conditions under
(7) The most frequent medical and (b) The agency or person discloses to which fees or expenses may be charged,
psychological problems experienced by client(s) and prospective client(s) that waived, reduced, or refunded and of
children from the countries of origin the following information is available when and how the fees and expenses
served by the agency or person; upon request and makes such must be paid.
(8) The process of developing information available when requested: (b) Before providing any adoption
emotional ties to an adoptive family; (1) The number of its adoption service to prospective adoptive
(9) Acculturation and assimilation placements per year for the prior three parent(s), the agency or person itemizes
issues, including those arising from calendar years, and the number and and discloses in writing the following
factors such as race, ethnicity, religion, percentage of those placements that information for each separate category
and culture and the impact of having remain intact, are disrupted, or have of fees and estimated expenses that the
been adopted internationally; and been dissolved as of the time the prospective adoptive parent(s) will be
(10) Child, adolescent, and adult information is provided; charged in connection with a
development as affected by adoption. (2) The number of parents who apply Convention adoption:
(c) The agency or person ensures that to adopt on a yearly basis, based on data (1) Home study. The expected total
employees who provide adoption- for the prior three calendar years; and fees and estimated expenses for home
related social services that involve the (3) The number of children eligible for study preparation and approval,
application of clinical skills and adoption and awaiting an adoptive whether the home study is to be
judgment (home studies, child placement referral via the agency or prepared directly by the agency or
background studies, counseling person. person itself, or prepared by a
services, parent preparation, post- (c) The agency or person does not give supervised provider, exempted
placement and other similar services) preferential treatment to its board provider, or approved person and
also receive, in addition to the members, contributors, volunteers, approved as required under § 96.47;
orientation and initial training employees, agents, consultants, or (2) Adoption expenses in the United
described in paragraphs (a) and (b) of independent contractors with respect to States. The expected total fees and
this section, no less than thirty hours of the placement of children for adoption estimated expenses for all adoption
training every two years, or more if and has a written policy to this effect. services other than the home study that
required by State law, on current and (d) The agency or person requires a will be provided in the United States.
emerging adoption practice issues client to sign a waiver of liability as part This category includes, but is not
through participation in seminars, of the adoption service contract only limited to, personnel costs,
conferences, documented distance where that waiver complies with administrative overhead, operational
learning courses, and other similar applicable State law. Any waiver costs, training and education,
programs. Continuing education hours required is limited and specific, based communications and publications costs,
required under State law may count on risks that have been discussed and and any other costs related to providing
toward the thirty hours of training as explained to the client in the adoption adoption services in the United States;
long as the training is related to current services contract. (3) Foreign country program expenses.
and emerging adoption practice issues. (e) The agency or person cooperates The expected total fees and estimated
(d) The agency or person exempts with reviews, inspections, and audits by expenses for all adoption services that
newly hired and current employees the accrediting entity or the Secretary. will be provided in the child’s
from elements of the orientation and (f) The agency or person uses the Convention country. This category
initial training required in paragraphs internet in the placement of individual includes, but is not limited to, costs for
personnel, administrative overhead, estimated expenses for any travel, parent(s) may be entitled within sixty
training, education, legal services, and transportation, and accommodation days of the completion of the delivery
communications, and any other costs services arranged by the agency or of services.
related to providing adoption services in person for the prospective adoptive
Responding to Complaints and Records
the child’s Convention country; parent(s).
(4) Care of the child. The expected (d) The agency or person also and Reports Management
total fees and estimated expenses specifies in its adoption services § 96.41 Procedures for responding to
charged to prospective adoptive contract when and how funds advanced complaints and improving service delivery.
parent(s) for the care of the child in the to cover fees or expenses will be (a) The agency or person has written
country of origin prior to adoption, refunded if adoption services are not complaint policies and procedures that
including, but not limited to, costs for provided. incorporate the standards in paragraphs
food, clothing, shelter and medical care; (e) When the agency or person uses
(b) through (h) of this section and
foster care services; orphanage care; and part of its fees to provide special
provides a copy of such policies and
any other services provided directly to services, such as cultural programs for
procedures, including contact
the child; adoptee(s), scholarships or other
information for the Complaint Registry,
(5) Translation and document services, it discloses this policy to the
to client(s) at the time the adoption
expenses. The expected total fees and prospective adoptive parent(s) in
services contract is signed.
estimated expenses for obtaining any advance of providing any adoption
(b) The agency or person permits any
necessary documents and for any services and gives the prospective
birth parent, prospective adoptive
translation of documents related to the adoptive parent(s) a general description
parent or adoptive parent, or adoptee to
adoption, along with information on of the programs supported by such
lodge directly with the agency or person
whether the prospective adoptive funds.
parent(s) will be expected to pay such (f) The agency or person has signed and dated complaints about any
costs directly or to third parties, either mechanisms in place for transferring of the services or activities of the agency
in the United States or in the child’s funds to Convention countries when the or person (including its use of
Convention country, or through the financial institutions of the Convention supervised providers) that he or she
agency or person. This category country so permit and for obtaining believes raise an issue of compliance
includes, but is not limited to, costs for written receipts for such transfers, so with the Convention, the IAA, or the
obtaining, translating, or copying that direct cash transactions by the regulations implementing the IAA, and
records or documents required to prospective adoptive parent(s) to pay for advises such individuals of the
complete the adoption, costs for the adoption services provided in the additional procedures available to them
child’s Convention court documents, Convention country are minimized or if they are dissatisfied with the agency’s
passport, adoption certificate and other unnecessary. or person’s response to their complaint.
documents related to the adoption, and (g) The agency or person does not (c) The agency or person responds in
costs for notarizations and certifications; customarily charge additional fees and writing to complaints received pursuant
(6) Contributions. Any fixed expenses beyond those disclosed in the to paragraph (b) of this section within
contribution amount or percentage that adoption services contract and has a thirty days of receipt, and provides
the prospective adoptive parent(s) will written policy to this effect. In the event expedited review of such complaints
be expected or required to make to child that unforeseen additional fees and that are time-sensitive or that involve
protection or child welfare service expenses are incurred in the Convention allegations of fraud.
programs in the child’s Convention country, the agency or person charges (d) The agency or person maintains a
country or in the United States, along such additional fees and expenses only written record of each complaint
with an explanation of the intended use under the following conditions: received pursuant to paragraph (b) of
of the contribution and the manner in (1) It discloses the fees and expenses this section and the steps taken to
which the transaction will be recorded in writing to the prospective adoptive investigate and respond to it and makes
and accounted for; and parent(s); this record available to the accrediting
(7) Post-placement and post-adoption (2) It obtains the specific consent of entity or the Secretary upon request.
reports. The expected total fees and the prospective adoptive parent(s) prior (e) The agency or person does not take
estimated expenses for any post- to expending any funds in excess of any action to discourage a client or
placement or post-adoption reports that $1000 for which the agency or person prospective client from, or retaliate
the agency or person or parent(s) must will hold the prospective adoptive against a client or prospective client for:
prepare in light of any requirements of parent(s) responsible or gives the making a complaint; expressing a
the expected country of origin. prospective adoptive parent(s) the grievance; providing information in
(c) If the following fees and estimated opportunity to waive the notice and writing or interviews to an accrediting
expenses were not disclosed as part of consent requirement in advance. If the entity on the agency’s or person’s
the categories identified in paragraph (b) prospective adoptive parent(s) has the performance; or questioning the conduct
of this section, the agency or person opportunity to waive the notice and of or expressing an opinion about the
itemizes and discloses in writing any: consent requirement in advance, this performance of an agency or person.
(1) Third party fees. The expected policy is reflected in the written policies (f) The agency or person provides to
total fees and estimated expenses for and procedures of the agency or person; the accrediting entity and the Secretary,
services that the prospective adoptive and on a semi-annual basis, a summary of all
parent(s) will be responsible to pay (3) It provides written receipts to the complaints received pursuant to
directly to a third party. Such third prospective adoptive parent(s) for fees paragraph (b) of this section during the
party fees include, but are not limited and expenses paid directly by the preceding six months (including the
to, fees to competent authorities for agency or person in the Convention number of complaints received and how
services rendered or Central Authority country and retains copies of such each complaint was resolved) and an
processing fees; and receipts. assessment of any discernible patterns
(2) Travel and accommodation (h) The agency or person returns any in complaints received against the
expenses. The expected total fees and funds to which the prospective adoptive agency or person pursuant to paragraph
(b) of this section, along with maintains all the data required in this (iii) The age of the child;
information about what systemic section in a format approved by the (iv) The date of the child’s placement
changes, if any, were made or are accrediting entity and provides it to the for adoption;
planned by the agency or person in accrediting entity on an annual basis. (v) The reason(s) for and resolution(s)
response to such patterns. (b) When acting as the primary of the dissolution of the adoption, to the
(g) The agency or person provides any provider, the agency or person routinely extent known by the agency or person;
information about complaints received generates and maintains reports as (vi) The names of the agencies or
pursuant to paragraph (b) of this section follows: persons that handled the placement for
as may be requested by the accrediting (1) For cases involving children adoption; and
entity or the Secretary. immigrating to the United States, (vii) The plans for the child.
(h) The agency or person has a quality information and reports on the total (5) Information on the shortest,
improvement program appropriate to its number of intercountry adoptions longest, and average length of time it
size and circumstances through which it undertaken by the agency or person takes to complete a Convention
makes systematic efforts to improve its each year in both Convention and non- adoption, set forth by the child’s
adoption services as needed. The agency Convention cases and, for each case: country of origin, calculated from the
or person uses quality improvement (i) The Convention country or other time the child is matched with the
methods such as reviewing complaint country from which the child emigrated; prospective adoptive parent(s) until the
data, using client satisfaction surveys, or (ii) The State to which the child time the adoption is finalized by a court,
comparing the agency’s or person’s immigrated; excluding any period for appeal;
practices and performance against the (iii) The State, Convention country, or (6) Information on the range of
data contained in the Secretary’s annual other country in which the adoption adoption fees, including the lowest,
reports to Congress on intercountry was finalized; highest, average, and the median of such
adoptions. (iv) The age of the child; and fees, set forth by the child’s country of
(v) The date of the child’s placement
origin, charged by the agency or person
§ 96.42 Retention, preservation, and for adoption.
(2) For cases involving children for Convention adoptions involving
disclosure of adoption records.
emigrating from the United States, children immigrating to the United
(a) The agency or person retains or States in connection with their
archives adoption records in a safe, information and reports on the total
number of intercountry adoptions adoption.
secure, and retrievable manner for the (c) If the agency or person provides
period of time required by applicable undertaken by the agency or person
each year in both Convention and non- adoption services in cases not subject to
State law. the Convention that involve a child
(b) The agency or person makes Convention cases and, for each case:
(i) The State from which the child emigrating from the United States for
readily available to the adoptee and the the purpose of adoption or after an
adoptive parent(s) upon request all non- emigrated;
(ii) The Convention country or other adoption has been finalized, it provides
identifying information in its custody such information as required by the
about the adoptee’s health history or country to which the child immigrated;
(iii) The State, Convention country, or Secretary directly to the Secretary and
background. demonstrates to the accrediting entity
(c) The agency or person ensures that other country in which the adoption
was finalized; that it has provided this information.
personal data gathered or transmitted in (d) The agency or person provides any
(iv) The age of the child; and
connection with an adoption is used (v) The date of the child’s placement of the information described in
only for the purposes for which the for adoption. paragraphs (a) through (c) of this section
information was gathered and (3) For each disrupted placement to the accrediting entity or the Secretary
safeguards sensitive individual involving a Convention adoption, within thirty days of request.
information. information and reports about the
(d) The agency or person has a plan Service Planning and Delivery
disruption, including information on:
that is consistent with the provisions of (i) The Convention country from § 96.44 Acting as primary provider.
this section, the plan required under which the child emigrated;
§ 96.33, and applicable State law for (a) When required by § 96.14(a), the
(ii) The State to which the child
transferring custody of adoption records agency or person acts as primary
immigrated;
that are subject to retention or archival provider and adheres to the provisions
(iii) The age of the child;
requirements to an appropriate (iv) The date of the child’s placement in § 96.14(b) through (e). When acting as
custodian, and ensuring the for adoption; the primary provider, the agency or
accessibility of those adoption records, (v) The reason(s) for and resolution(s) person develops and implements a
in the event that the agency or person of the disruption of the placement for service plan for providing all adoption
ceases to provide or is no longer adoption, including information on the services and provides all such services,
permitted to provide adoption services child’s re-placement for adoption and either directly or through arrangements
under the Convention. final legal adoption; with supervised providers, exempted
(e) The agency or person notifies the (vi) The names of the agencies or providers, public domestic authorities,
accrediting entity and the Secretary in persons that handled the placement for competent authorities, Central
writing within thirty days of the time it adoption; and Authorities, public foreign authorities,
ceases to provide or is no longer (vii) The plans for the child. or, to the extent permitted by § 96.14(c),
permitted to provide adoption services (4) Wherever possible, for each other foreign providers (agencies,
and provides information about the dissolution of a Convention adoption, persons, or other non-governmental
transfer of its adoption records. information and reports on the entities).

dissolution, including information on: (b) The agency or person has an
§ 96.43 Case tracking, data management, (i) The Convention country from organizational structure, financial and
and reporting. which the child emigrated; personnel resources, and policies and
(a) When acting as the primary (ii) The State to which the child procedures in place that demonstrate
provider, the agency or person immigrated; that the agency or person is capable of
acting as a primary provider in any (5) Specifies whether the supervised interests of the child and preventing the
Convention adoption case and, when provider’s fees and expenses will be sale, abduction, exploitation, or
acting as the primary provider, provides billed to and paid by the client(s) trafficking of children;
appropriate supervision to supervised directly or billed to the client through (3) Before entering into an agreement
providers and verifies the work of other the primary provider; with the primary provider for the
foreign providers in accordance with (6) Provides that, if billing the provision of adoption services, discloses
§§ 96.45 and 96.46. client(s) directly for its service, the to the primary provider the suitability
supervised provider will give the information listed in § 96.35, taking into
§ 96.45 Using supervised providers in the client(s) an itemized bill of all fees and account the authorities in the
United States.
expenses to be paid, with a written Convention country that are analogous
(a) The agency or person, when acting explanation of how and when such fees to the authorities identified in that
as the primary provider and using and expenses will be refunded if the section;
supervised providers in the United service is not completed, and will return (4) Does not have a pattern of
States to provide adoption services, any funds collected to which the licensing suspensions or other sanctions
ensures that each such supervised client(s) may be entitled within sixty and has not lost the right to provide
provider: days of the completion of the delivery adoption services in any jurisdiction for
(1) Is in compliance with applicable of services; reasons germane to the Convention; and
State licensing and regulatory (7) Requires the supervised provider (5) Is accredited in the Convention
requirements in all jurisdictions in to meet the same personnel country in which it operates, if such
which it provides adoption services; qualifications as accredited agencies accreditation is required by the laws of
(2) Does not engage in practices and approved persons, as provided for that Convention country to perform the
inconsistent with the Convention’s in § 96.37, except that, for purposes of adoption services it is providing.
principles of furthering the best §§ 96.37(e)(3), (f)(3), and (g)(2), the work
interests of the child and preventing the (b) The agency or person, when acting
of the employee must be supervised by as the primary provider and using
sale, abduction, exploitation, or an employee of an accredited agency or
trafficking of children; and foreign supervised providers to provide
approved person; adoption services in Convention
(3) Before entering into an agreement (8) Requires the supervised provider
with the primary provider for the countries, ensures that each such
to limit the use of and safeguard foreign supervised provider operates
provision of adoption services, discloses personal data gathered or transmitted in
to the primary provider the suitability under a written agreement with the
connection with an adoption, as primary provider that:
information listed in § 96.35. provided for in § 96.42;
(b) The agency or person, when acting (1) Identifies clearly the adoption
(9) Requires the supervised provider service(s) to be provided by the foreign
as the primary provider and using to respond within a reasonable period of
supervised providers in the United supervised provider;
time to any request for information from (2) Requires the foreign supervised
States to provide adoption services, the primary provider, the Secretary, or
ensures that each such supervised provider, if responsible for obtaining
the accrediting entity that issued the medical or social information on the
provider operates under a written primary provider’s accreditation or
agreement with the primary provider child, to comply with the standards in
approval; § 96.49(d) through (j);
that: (10) Requires the supervised provider
(1) Identifies clearly the adoption (3) Requires the foreign supervised
to provide the primary provider on a provider to adhere to the standard in
service(s) to be provided by the timely basis any data that is necessary
supervised provider and requires that § 96.36(a) prohibiting child buying; and
to comply with the primary provider’s has written policies and procedures in
the service(s) be provided in accordance reporting requirements;
with the applicable service standard(s) place reflecting the prohibitions in
(11) Requires the supervised provider § 96.36(a) and reinforces them in
for accreditation and approval (for to disclose promptly to the primary
example: home study (§ 96.47); parent training programs for its employees and
provider any changes in the suitability agents;
training (§ 96.48); child background information required by § 96.35;
studies and consent (§ 96.53)); (4) Requires the foreign supervised
(12) Permits suspension or
(2) Requires the supervised provider provider to compensate its directors,
termination of the agreement on
to comply with the following standards officers, and employees who provide
reasonable notice if the primary
regardless of the type of adoption intercountry adoption services on a fee-
provider has grounds to believe that the
services it is providing: § 96.36 for-service, hourly wage, or salary basis,
supervised provider is not in
(prohibition on child-buying), § 96.34 rather than based on whether a child is
compliance with the agreement or the
(compensation), § 96.38 (employee placed for adoption, located for an
requirements of this section.
training), § 96.39(d) (waivers of adoptive placement, or on a similar
liability), and § 96.41(b) through (e) § 96.46 Using providers in Convention contingent fee basis;
(complaints); countries. (5) Identifies specifically the lines of
(3) Identifies specifically the lines of (a) The agency or person, when acting authority between the primary provider
authority between the primary provider as the primary provider and using and the foreign supervised provider, the
and the supervised provider, the foreign supervised providers to provide employee of the primary provider who
employee of the primary provider who adoption services in Convention will be responsible for supervision, and
will be responsible for supervision, and countries, ensures that each such the employee of the supervised provider
the employee of the supervised provider foreign supervised provider: who will be responsible for ensuring
who will be responsible for ensuring (1) Is in compliance with the laws of compliance with the written agreement;
compliance with the written agreement; the Convention country in which it (6) States clearly the compensation
(4) States clearly the compensation operates; arrangement for the services to be
arrangement for the services to be (2) Does not engage in practices provided and the fees and expenses to
provided and the fees and expenses to inconsistent with the Convention’s be charged by the foreign supervised
be charged by the supervised provider; principles of furthering the best provider;
(7) Specifies whether the foreign Standards for Cases in Which a Child § 96.37(f), or, if the individual is an
supervised provider’s fees and expenses Is Immigrating to the United States exempted provider, ensures that the
will be billed to and paid by the (Incoming Cases) individual meets the requirements for
client(s) directly or billed to the client home study providers established by 8
through the primary provider; § 96.47 Preparation of home studies in CFR 204.3(b).
incoming cases.
(8) Provides that, if billing the (d) The agency or person takes all
client(s) directly for its service, the (a) The agency or person ensures that appropriate measures to ensure the
foreign supervised provider will give a home study on the prospective timely transmission of the same home
the client(s) an itemized bill of all fees adoptive parent(s) (which for purposes study that was provided to the
and expenses to be paid, with a written of this section includes the initial report prospective adoptive parent(s) or to
explanation of how and when such fees and any supplemental statement DHS to the Central Authority of the
and expenses will be refunded if the submitted to DHS) is completed that child’s country of origin (or to an
service is not completed, and will return includes the following: alternative authority designated by that
any funds collected to which the (1) Information about the prospective Central Authority).
client(s) may be entitled within sixty adoptive parent(s)’ identity, eligibility
days of the completion of the delivery and suitability to adopt, background, § 96.48 Preparation and training of
family and medical history, social prospective adoptive parent(s) in incoming
of services; cases.
environment, reasons for adoption,
(9) Requires the foreign supervised (a) The agency or person provides
ability to undertake an intercountry
provider to respond within a reasonable prospective adoptive parent(s) with at
adoption, and the characteristics of the
period of time to any request for least ten hours (independent of the
children for whom the prospective
information from the primary provider, home study) of preparation and training,
adoptive parent(s) would be qualified to
the Secretary, or the accrediting entity as described in paragraphs (b) and (c) of
care (specifying in particular whether
that issued the primary provider’s this section, designed to promote a
they are willing and able to care for a
accreditation or approval; successful intercountry adoption. The
child with special needs);
(10) Requires the foreign supervised agency or person provides such training
(2) A determination whether the
provider to provide the primary before the prospective adoptive
prospective adoptive parent(s) are
provider on a timely basis any data that parent(s) travel to adopt the child or the
eligible and suited to adopt;
is necessary to comply with the primary (3) A statement describing the child is placed with the prospective
provider’s reporting requirements; counseling and training provided to the adoptive parent(s) for adoption.
(11) Requires the foreign supervised prospective adoptive parent(s); (b) The training provided by the
provider to disclose promptly to the (4) The results of a criminal agency or person addresses the
primary provider any changes in the background check on the prospective following topics:
suitability information required by adoptive parent(s) and any other (1) The intercountry adoption process,
§ 96.35; and individual for whom a check is required the general characteristics and needs of
(12) Permits suspension or by 8 CFR 204.3(e); children awaiting adoption, and the in-
termination of the agreement on (5) A full and complete statement of country conditions that affect children
reasonable notice if the primary all facts relevant to the eligibility and in the Convention country from which
provider has grounds to believe that the suitability of the prospective adoptive the prospective adoptive parent(s) plan
foreign supervised provider is not in parent(s) to adopt a child under any to adopt;
compliance with the agreement or the specific requirements identified to the (2) The effects on children of
requirements of this section. Secretary by the Central Authority of the malnutrition, relevant environmental
(c) The agency or person, when acting child’s country of origin; and toxins, maternal substance abuse, and of
as the primary provider and, in (6) A statement in each copy of the any other known genetic, health,
accordance with § 96.14, using foreign home study that it is a true and accurate emotional, and developmental risk
providers that are not under its copy of the home study that was factors associated with children from
supervision, verifies, through review of provided to the prospective adoptive the expected country of origin;
the relevant documentation and other parent(s) or DHS. (3) Information about the impact on a
appropriate steps, that: (b) The agency or person ensures that child of leaving familiar ties and
(1) Any necessary consent to the home study is performed in surroundings, as appropriate to the
termination of parental rights or to accordance with 8 CFR 204.3(e), and expected age of the child;
adoption obtained by the foreign any applicable State law. (4) Data on institutionalized children
provider was obtained in accordance (c) Where the home study is not and the impact of institutionalization on
with applicable foreign law and Article performed in the first instance by an children, including the effect on
4 of the Convention; accredited agency or temporarily children of the length of time spent in
(2) Any background study and report accredited agency, the agency or person an institution and of the type of care
on a child in a case involving ensures that the home study is reviewed provided in the expected country of
immigration to the United States (an and approved in writing by an origin;
incoming case) performed by the foreign accredited agency or temporarily (5) Information on attachment
provider was performed in accordance accredited agency. The written approval disorders and other emotional problems
with applicable foreign law and Article must include a determination that the that institutionalized or traumatized
16 of the Convention. home study: children and children with a history of
(3) Any home study and report on (1) Includes all of the information multiple caregivers may experience,
prospective adoptive parent(s) in a case required by paragraph (a) of this section before and after their adoption;
involving emigration from the United and is performed in accordance with 8 (6) Information on the laws and
States (an outgoing case) performed by CFR 204.3(e), and applicable State law; adoption processes of the expected
the foreign provider was performed in and country of origin, including foreseeable
accordance with applicable foreign law (2) Was performed by an individual delays and impediments to finalization
and Article 15 of the Convention. who meets the requirements in of an adoption;
(7) Information on the long-term specific adoption only when the agency (4) Specific information on the known
implications for a family that has or person determines that the health risks in the specific region or
become multicultural through prospective adoptive parent(s) have country where the child resides.
intercountry adoption; and received adequate prior training or have (e) If the agency or person provides
(8) An explanation of any reporting prior experience as parent(s) of children medical information, other than the
requirements associated with adopted from abroad. information provided by public foreign
Convention adoptions, including any (h) The agency or person records the authorities, to the prospective adoptive
post-placement or post-adoption reports nature and extent of the training and parent(s) from an examination by a
required by the expected country of preparation provided to the prospective physician or from an observation of the
origin. adoptive parent(s) in the adoption child by someone who is not a
(c) The agency or person also provides record. physician, the agency or person uses
the prospective adoptive parent(s) with reasonable efforts to include the
training that allows them to be as fully § 96.49 Provision of medical and social following:
information in incoming cases.
prepared as possible for the adoption of (1) The name and credentials of the
a particular child. This includes (a) The agency or person provides a physician who performed the
counseling on: copy of the child’s medical records examination or the individual who
(1) The child’s history and cultural, (including, to the fullest extent observed the child;
racial, religious, ethnic, and linguistic practicable, a correct and complete (2) The date of the examination or
background; English-language translation of such observation; how the report’s
(2) The known health risks in the records) to the prospective adoptive information was retained and verified;
specific region or country where the parent(s) as early as possible, but no and if anyone directly responsible for
child resides; and later than two weeks before either the the child’s care has reviewed the report;
(3) Any other medical, social, adoption or placement for adoption, or (3) If the medical information
background, birth history, educational the date on which the prospective includes references, descriptions, or
data, developmental history, or any adoptive parent(s) travel to the observations made by any individual
other data known about the particular Convention country to complete all other than the physician who performed
child. procedures in such country relating to the examination or the individual who
(d) The agency or person provides the adoption or placement for adoption, performed the observation, the identity
such training through appropriate whichever is earlier. of that individual, the individual’s
methods, including: (b) Where any medical record training, and information on what data
(1) Collaboration among agencies or provided pursuant to paragraph (a) of and perceptions the individual used to
persons to share resources to meet the this section is a summary or draw his or her conclusions;
training needs of prospective adoptive compilation of other medical records, (4) A review of hospitalizations,
parents; the agency or person includes those significant illnesses, and other
(2) Group seminars offered by the underlying medical records in the significant medical events, and the
agency or person or other agencies or medical records provided pursuant to reasons for them;
training entities; paragraph (a) if they are available. (5) Information about the full range of
(3) Individual counseling sessions; (c) The agency or person provides the any tests performed on the child,
(4) Video, computer-assisted, or prospective adoptive parent(s) with any including tests addressing known risk
distance learning methods using untranslated medical reports or factors in the child’s country of origin;
standardized curricula; or videotapes or other reports and provides and
(5) In cases where training cannot an opportunity for the client(s) to (6) Current health information.
otherwise be provided, an extended arrange for their own translation of the (f) The agency or person itself uses
home study process, with a system for records, including a translation into a reasonable efforts, or requires its
evaluating the thoroughness with which language other than English, if needed. supervised provider in the child’s
the topics have been covered. (d) The agency or person itself uses country of origin who is responsible for
(e) The agency or person provides reasonable efforts, or requires its obtaining social information about the
additional in-person, individualized supervised provider in the child’s child on behalf of the agency or person
counseling and preparation, as needed, country of origin who is responsible for to use reasonable efforts, to obtain
to meet the needs of the prospective obtaining medical information about the available information, including in
adoptive parent(s) in light of the child on behalf of the agency or person particular:
particular child to be adopted and his or to use reasonable efforts, to obtain (1) Information about the child’s birth
her special needs, and any other available information, including in family and prenatal history and cultural,
training or counseling needed in light of particular: racial, religious, ethnic, and linguistic
the child background study or the home (1) The date that the Convention background;
study. country or other child welfare authority (2) Information about all of the child’s
(f) The agency or person provides the assumed custody of the child and the past and current placements prior to
prospective adoptive parent(s) with child’s condition at that time; adoption, including, but not limited to
information about print, internet, and (2) History of any significant illnesses, any social work or court reports on the
other resources available for continuing hospitalizations, special needs, and child and any information on who
to acquire information about common changes in the child’s condition since assumed custody and provided care for
behavioral, medical, and other issues; the Convention country or other child the child; and
connecting with parent support groups, welfare authority assumed custody of (3) Information about any birth
adoption clinics and experts; and the child; siblings whose existence is known to
seeking appropriate help when needed. (3) Growth data, including prenatal the agency or person, or its supervised
(g) The agency or person exempts and birth history, and developmental provider, including information about
prospective adoptive parent(s) from all status over time and current such siblings’ whereabouts.
or part of the training and preparation developmental data at the time of the (g) Where any of the information
that would normally be required for a child’s referral for adoption; and listed in paragraphs (d) and (f) of this
section cannot be obtained, the agency (d) If counseling does not succeed in provide all necessary information for
or person documents in the adoption resolving the crisis and the placement is the report(s); and
record the efforts made to obtain the disrupted, the agency or person (3) Discloses who will prepare the
information and why it was not assuming custody of the child assumes reports and the fees that will be charged.
obtainable. The agency or person responsibility for making another (h) The agency or person takes steps
continues to use reasonable efforts to placement of the child. to:
secure those medical or social records (e) The agency or person acts (1) Ensure that an order declaring the
that could not be obtained up until the promptly and in accord with any adoption as final is sought by the
adoption is finalized. applicable legal requirements to remove prospective adoptive parent(s), and
(h) Where available, the agency or the child when the placement may no entered in compliance with section
person provides information for longer be in the child’s best interests, to 301(c) of the IAA (42 U.S.C. 14931(c));
contacting the examining physician or provide temporary care, to find an and
the individual who made the eventual adoptive placement for the (2) Notify the Secretary of the
observations to any physician engaged child, and, in consultation with the finalization of the adoption within
by the prospective adoptive parent(s), Secretary, to inform the Central thirty days of the entry of the order.
upon request. Authority of the child’s country of § 96.51 Post-adoption services in
(i) The agency or person ensures that origin about any new prospective incoming cases.
videotapes and photographs of the child adoptive parent(s). (a) The agency or person takes all
are identified by the date on which the (1) In all cases where removal of a appropriate measures to ensure that the
videotape or photograph was recorded child from a placement is considered, transfer of the child takes place in
or taken and that they were made in the agency or person considers the secure and appropriate circumstances,
compliance with the laws in the country child’s views when appropriate in light with properly trained and qualified
where recorded or taken. of the child’s age and maturity and, escorts, if used, and, if possible, in the
(j) The agency or person does not when required by State law, obtains the company of the adoptive parent(s).
withhold from or misrepresent to the consent of the child prior to removal. (b) The agency or person informs the
prospective adoptive parent(s) any (2) The agency or person does not prospective adoptive parent(s) in the
available medical, social, or other return from the United States a child adoption services contract whether the
pertinent information concerning the placed for adoption in the United States agency or person will or will not
child. unless the Central Authority of the provide any post-adoption services. The
(k) The agency or person does not country of origin and the Secretary have agency or person also informs the
withdraw a referral until the prospective approved the return in writing. prospective adoptive parent(s) in the
adoptive parent(s) have had two weeks (f) The agency or person includes in adoption services contract whether it
(unless extenuating circumstances the adoption services contract with the will provide services if an adoption is
involving the child’s best interests prospective adoptive parent(s) a plan dissolved, and, if it indicates it will, it
require a more expedited decision) to describing the agency’s or person’s provides a plan describing the agency’s
consider the needs of the child and their responsibilities if a placement for or person’s responsibilities.
ability to meet those needs, and to adoption is disrupted. This plan (c) When post-adoption reports are
obtain physician review of medical addresses: required by the child’s country of origin,
information and other descriptive (1) Who will have legal and financial the agency or person includes a
information, including videotapes of the responsibility for transfer of custody in requirement for such reports in the
child if available. an emergency or in the case of adoption services contract and makes
impending disruption and for the care good-faith efforts to encourage adoptive
§ 96.50 Placement and post-placement of the child;
monitoring until final adoption in incoming parent(s) to provide such reports.
(2) If the disruption takes place after (d) The agency or person does not
cases. the child has arrived in the United
(a) The agency or person takes all return from the United States an
States, under what circumstances the adopted child whose adoption has been
appropriate measures to ensure that the child will, as a last resort, be returned
transfer of the child takes place in dissolved unless the Central Authority
to the child’s country of origin, if that of the country of origin and the
secure and appropriate circumstances, is determined to be in the child’s best
with properly trained and qualified Secretary have approved the return in
interests; writing.
escorts, if used, and, if possible, in the (3) How the child’s wishes, age,
company of the prospective adoptive length of time in the United States, and § 96.52 Performance of Convention
parent(s). other pertinent factors will be taken into communication and coordination functions
(b) In the post-placement phase, the account; and in incoming cases.
agency or person monitors and (4) How the Central Authority of the (a) The agency or person keeps the
supervises the child’s placement to child’s country of origin and the Central Authority of the Convention
ensure that the placement remains in Secretary will be notified. country and the Secretary informed as
the best interests of the child, and (g) The agency or person provides necessary about the adoption process
ensures that at least the number of home post-placement reports until final and the measures taken to complete it,
visits required by State law or by the adoption of a child to the Convention as well as about the progress of the
child’s country of origin are performed, country when required by the placement if a probationary period is
whichever is greater. Convention country. Where such reports required.
(c) When a placement for adoption is are required, the agency or person: (b) The agency or person takes all
in crisis in the post-placement phase, (1) Informs the prospective adoptive appropriate measures, consistent with
the agency or person makes an effort to parent(s) in the adoption services the procedures of the U.S. Central
provide or arrange for counseling by an contract of the requirement prior to the Authority and of the Convention
individual with appropriate skills to referral of the child for adoption; country, to:
assist the family in dealing with the (2) Informs the prospective adoptive (1) Transmit on a timely basis the
problems that have arisen. parent(s) that they will be required to home study to the Central Authority or
other competent authority of the child’s either by an exempted provider or by an the father if these identities may not be
country of origin; individual who meets the requirements disclosed under State law.
(2) Obtain the child background set forth in § 96.37(g).
study, proof that the necessary consents (b) Where the child background study § 96.54 Placement standards in outgoing
cases.
to the child’s adoption have been is not prepared in the first instance by
obtained, and the necessary an accredited agency or temporarily (a) Except in the case of adoption by
determination that the prospective accredited agency, the agency or person relatives or in the case in which the
placement is in the child’s best ensures that the child background study birth parent(s) have identified specific
interests, from the Central Authority or is reviewed and approved in writing by prospective adoptive parent(s) or in
other competent authority in the child’s an accredited agency or temporarily other special circumstances accepted by
country of origin; accredited agency. The written approval the State court with jurisdiction over the
(3) Provide confirmation that the must include a determination that the case, the agency or person makes
prospective adoptive parent(s) agree to background study includes all the reasonable efforts to find a timely
the adoption to the Central Authority or information required by paragraph (a) of adoptive placement for the child in the
other competent authority in the child’s this section. United States by:
country of origin; and (c) The agency or person takes all (1) Disseminating information on the
(4) Transmit the determination that appropriate measures to ensure that child and his or her availability for
the child is or will be authorized to consents have been obtained as follows: adoption through print, media, and
enter and reside permanently in the (1) The persons, institutions, and internet resources designed to
United States to the Central Authority or authorities whose consent is necessary communicate with potential prospective
other competent authority in the child’s for adoption have been counseled as adoptive parent(s) in the United States;
country of origin. necessary and duly informed of the (2) Listing information about the child
(c) The agency or person takes all effects of their consent, in particular, on a national or State adoption
necessary and appropriate measures, whether or not an adoption will result exchange or registry for at least sixty
consistent with the procedures of the in the termination of the legal calendar days after the birth of the
Convention country, to obtain relationship between the child and his child;
or her family of origin; (3) Responding to inquiries about
permission for the child to leave his or
(2) All such persons, institutions, and adoption of the child; and
her country of origin and to enter and
authorities have given their consents; (4) Providing a copy of the child
reside permanently in the United States.
(3) The consents have been expressed background study to potential U.S.
(d) Where the transfer of the child
or evidenced in writing in the required prospective adoptive parent(s).
does not take place, the agency or (b) The agency or person
person returns the home study on the legal form, have been given freely, were
not induced by payments or demonstrates to the satisfaction of the
prospective adoptive parent(s) and/or State court with jurisdiction over the
the child background study to the compensation of any kind, and have not
been withdrawn; adoption that sufficient reasonable
authorities that forwarded them. efforts (including no efforts, when in the
(4) The consent of the mother, where
(e) The agency or person takes all best interests of the child) to find a
required, was executed after the birth of
necessary and appropriate measures to timely and qualified adoptive placement
the child;
perform any tasks in a Convention (5) The child, as appropriate in light for the child in the United States were
adoption case that the Secretary of his or her age and maturity, has been made.
identifies are required to comply with counseled and duly informed of the (c) In placing the child for adoption,
the Convention, the IAA, or any effects of the adoption and of his or her the agency or person:
regulations implementing the IAA. consent to the adoption; and (1) To the extent consistent with State
Standards for Cases in Which a Child (6) The child’s consent, where law, gives significant weight to the
Is Emigrating From the United States required, has been given freely, in the placement preferences expressed by the
(Outgoing Cases) required legal form, and expressed or birth parent(s) in all voluntary
evidenced in writing and not induced placements;
§ 96.53 Background studies on the child by payment or compensation of any (2) To the extent consistent with State
and consents in outgoing cases. kind. law, makes diligent efforts to place
(a) The agency or person takes all (d) If the child is twelve years of age siblings together for adoption and,
appropriate measures to ensure that a or older, or as otherwise provided by where placement together is not
child background study is performed State law, the agency or person gives possible, to arrange for contact between
that includes information about the due consideration to the child’s wishes separated siblings, unless it is in the
child’s identity, adoptability, or opinions before determining that an best interests of one of the siblings that
background, social environment, family intercountry placement is in the child’s such efforts or contact not take place;
history, medical history (including that best interests. and
of the child’s family), and any special (e) The agency or person prior to the (3) Complies with all applicable
needs of the child. The child child’s adoption takes all appropriate requirements of the Indian Child
background study must include the measures to transmit to the Central Welfare Act.
following: Authority or other competent authority (d) The agency or person complies
(1) Information that demonstrates that or accredited bodies of the Convention with any State law requirements
consents were obtained in accordance country the child background study, pertaining to the provision and payment
with paragraph (c) of this section; proof that the necessary consents have of independent legal counsel for birth
(2) Information that demonstrates been obtained, and the reasons for its parents. If State law requires full
consideration of the child’s wishes and determination that the placement is in disclosure to the birth parent(s) that the
opinions in accordance with paragraph the child’s best interests. In doing so, child is to be adopted by parent(s) who
(d) of this section and; the agency or person, as required by reside outside the United States, the
(3) Information that confirms that the Article 16(2) of the Convention, does agency or person provides such
child background study was prepared not reveal the identity of the mother or disclosure.
(e) The agency or person takes all (2) Any additional information on the § 96.58 Notification of accreditation and
appropriate measures to give due adoption is transmitted to the Secretary approval decisions.
consideration to the child’s upbringing promptly upon request; and (a) The accrediting entity must notify
and to his or her ethnic, religious, and (3) It otherwise facilitates, as agencies and persons that applied by the
cultural background. requested, the Secretary’s ability to transitional application deadline of its
(f) When particular prospective provide the certification that the child accreditation and approval decisions on
adoptive parent(s) in a Convention has been adopted or that custody has a uniform notification date to be
country have been identified, the agency been granted for the purpose of established by the Secretary. On that
or person takes all appropriate measures adoption, in accordance with the date, the accrediting entity must inform
to determine whether the envisaged Convention and the IAA. each applicant and the Secretary in
placement is in the best interests of the (c) Where the transfer of the child writing whether the agency’s or person’s
child, on the basis of the child does not take place, the agency or application has been granted or denied
background study and the home study person returns the home study on the or remains pending. The accrediting
on the prospective adoptive parent(s). prospective adoptive parent(s) and/or entity may not provide any information
the child background study to the about its accreditation or approval
(g) The agency or person thoroughly authorities that forwarded them.
prepares the child for the transition to decisions to any agency or person or to
(d) The agency or person provides to the public until the uniform notification
the Convention country, using age- the State court with jurisdiction over the
appropriate services that address the date. If the Secretary requests
adoption: information on the interim or final
child’s likely feelings of separation, (1) Proof that consents have been
grief, and loss and difficulties in making status of an applicant prior to the
given as required in § 96.53(c); uniform notification date, the
any cultural, religious, racial, ethnic, or (2) An English copy or certified
linguistic adjustment. accrediting entity must provide such
English translation of the home study on information to the Secretary.
(h) The agency or person takes all the prospective adoptive parent(s) in the (b) Notwithstanding the provisions in
appropriate measures to ensure that the Convention country, and the paragraph (a) of this section, the
transfer of the child takes place in determination by the agency or person accrediting entity may, in its discretion,
secure and appropriate circumstances, that the placement with the prospective communicate with agencies and persons
with properly trained and qualified adoptive parent(s) is in the child’s best that applied by the transitional
escorts, if used, and, if possible, in the interests; application date about the status of their
company of the adoptive parent(s) or the (3) Evidence that the prospective pending applications for the sole
prospective adoptive parent(s); adoptive parent(s) in the Convention purpose of affording them an
(i) Before the placement for adoption country agree to the adoption; opportunity to correct deficiencies that
proceeds, the agency or person (4) Evidence that the child will be
may hinder or prevent accreditation or
identifies the entity in the receiving authorized to enter and reside
approval.
country that will provide post- permanently in the Convention country (c) The accrediting entity must
placement supervision and reports, if or on the same basis as that of the routinely inform applicants that applied
required by State law, and ensures that prospective adoptive parent(s); and after the transitional application date in
the child’s adoption record contains the (5) Evidence that the Central
writing of its accreditation and approval
information necessary for contacting Authority of the Convention country has
decisions, as those decisions are
that entity. agreed to the adoption, if such consent
finalized, but may not do so earlier than
is necessary under its laws for the
(j) The agency or person ensures that the uniform notification date referenced
adoption to become final.
the child’s adoption record includes the (e) The agency or person makes the in paragraph (a) of this section. The
order granting the adoption or legal showing required by § 96.54(b) to the accrediting entity must routinely
custody for the purpose of adoption in State court with jurisdiction over the provide this information to the
the Convention country. adoption. Secretary in writing.
(k) The agency or person consults (f) The agency or person takes all § 96.59 Review of decisions to deny
with the Secretary before arranging for necessary and appropriate measures to accreditation or approval.
the return to the United States of any perform any tasks in a Convention (a) There is no administrative or
child who has emigrated to a adoption case that the Secretary judicial review of an accrediting entity’s
Convention country in connection with identifies are required to comply with decision to deny an application for
the child’s adoption. the Convention, the IAA, or any accreditation or approval. As provided
regulations implementing the IAA. in § 96.79, a decision to deny for these
§ 96.55 Performance of Convention
communication and coordination functions § 96.56 [Reserved] purposes includes:
in outgoing cases. (1) A denial of the agency’s or
Subpart G—Decisions on Applications person’s initial application for
(a) The agency or person keeps the
for Accreditation or Approval accreditation or approval;
Central Authority of the Convention
(2) A denial of an application made
country and the Secretary informed as § 96.57 Scope. after cancellation or refusal to renew by
necessary about the adoption process The provisions in this subpart the accrediting entity; and
and the measures taken to complete it, establish the procedures for when the (3) A denial of an application made
as well as about the progress of the accrediting entity issues decisions on after cancellation or debarment by the
placement if a probationary period is applications for accreditation or Secretary.
required. approval. Temporary accreditation is (b) The agency or person may petition
(b) The agency or person ensures that: governed by the provisions in subpart N the accrediting entity for
(1) Copies of all documents from the of this part. Unless otherwise provided reconsideration of a denial. The
State court proceedings, including the in subpart N of this part, the provisions accrediting entity must establish
order granting the adoption or legal in this subpart do not apply to agencies internal review procedures that provide
custody, are provided to the Secretary; seeking temporary accreditation. an opportunity for an agency or person
to petition for reconsideration of the (b) The accredited agency or approved § 96.66 Oversight of accredited agencies
denial. person may seek renewal from a and approved persons by the accrediting
different accrediting entity than the one entity.
§ 96.60 Length of accreditation or approval (a) The accrediting entity must
that handled its prior application. If it
period.
changes accrediting entities, the monitor agencies it has accredited and
(a) Except as provided in paragraph accredited agency or approved person persons it has approved at least
(b) of this section, the accrediting entity must so notify the accrediting entity that annually to ensure that they are in
will accredit or approve an agency or handled its prior application by the date substantial compliance with the
person for a period of four years. The on which the agency or person must standards in subpart F of this part, as
accreditation or approval period will (pursuant to paragraph (a) of this determined using a method approved by
commence either on the date the section) seek renewal of its status. The the Secretary in accordance with
Convention enters into force for the accredited agency or approved person § 96.27(d). The accrediting entity must
United States (if the agency or person is must follow the new accrediting entity’s investigate complaints about accredited
accredited or approved before that date) instructions when submitting a request agencies and approved persons, as
or on the date that the agency or person for renewal and preparing documents provided in subpart J of this part.
is granted accreditation or approval. and other information for the new (b) An accrediting entity may, on its
(b) In order to stagger the renewal
accrediting entity to review in own initiative, conduct site visits to
requests from agencies and persons that
connection with the renewal request. inspect an agency’s or person’s premises
applied for accreditation or approval by
(c) The accrediting entity must or programs, with or without advance
the transitional application deadline, to
process the request for renewal in a notice, for purposes of random
prevent renewal requests from coming
timely fashion. Before deciding whether verification of its continued compliance
due at the same time, the accrediting
to renew the accreditation or approval or to investigate a complaint. The
entity may accredit or approve some
of an agency or person, the accrediting accrediting entity may consider any
agencies and persons that applied by the
entity may, in its discretion, advise the information about the agency or person
transitional application date for a period
agency or person of any deficiencies that becomes available to it about the
of between three and five years for their
that may hinder or prevent its renewal compliance of the agency or person. The
first accreditation or approval cycle. The
and defer a decision to allow the agency provisions of §§ 96.25 and 96.26 govern
accrediting entity must establish
or person to correct the deficiencies. requests for and use of information.
criteria, to be approved by the Secretary,
The accrediting entity must notify the (c) The accrediting entity must require
for choosing which agencies and
accredited agency, approved person, accredited agencies or approved persons
persons it will accredit or approve for a
and the Secretary in writing when it to attest annually that they have
period of other than four years.
renews or refuses to renew an agency’s remained in substantial compliance and
§ 96.61 [Reserved] or person’s accreditation or approval. to provide supporting documentation to
(d) Sections 96.24, 96.25, and 96.26, indicate such ongoing compliance with
Subpart H—Renewal of Accreditation which relate to evaluation procedures the standards in subpart F of this part.
or Approval and to requests for and use of
information, and § 96.27, which relates § 96.67 [Reserved]
§ 96.62 Scope.
to the substantive criteria for evaluating
The provisions in this subpart Subpart J—Oversight Through Review
applicants for accreditation or approval,
establish the procedures for renewal of of Complaints
other than § 96.27(e), will govern
an agency’s accreditation or a person’s determinations about whether to renew § 96.68 Scope.
approval. Temporary accreditation may accreditation or approval. In lieu of
not be renewed, and the provisions in The provisions in this subpart
§ 96.27(e), if the agency or person has establish the procedures that the
this subpart do not apply to temporarily been suspended by an accrediting entity
accredited agencies. accrediting entity will use for
or the Secretary during its most current processing complaints against
§ 96.63 Renewal of accreditation or accreditation or approval cycle, the accredited agencies and approved
approval. accrediting entity may take the reasons persons (including complaints
(a) The accrediting entity must advise underlying the suspension into account concerning their use of supervised
accredited agencies and approved when determining whether to renew providers) that raise an issue of
persons that it monitors of the date by accreditation or approval and may compliance with the Convention, the
which they should seek renewal of their refuse to renew accreditation or IAA, or the regulations implementing
accreditation or approval so that the approval based on the prior suspension. the IAA, as determined by the
renewal process can reasonably be § 96.64 [Reserved] accrediting entity or the Secretary, and
completed prior to the expiration of the that are therefore relevant to the
agency’s or person’s current Subpart I—Routine Oversight by oversight functions of the accrediting
accreditation or approval. If the Accrediting Entities entity or the Secretary. Temporary
accredited agency or approved person accreditation is governed by the
does not wish to renew its accreditation § 96.65 Scope.
provisions of subpart N of this part; as
or approval, it must immediately notify The provisions in this subpart provided in § 96.103, procedures for
the accrediting entity and take all establish the procedures for routine processing complaints on temporarily
necessary steps to complete its oversight of accredited agencies and accredited agencies must comply with
Convention cases and to transfer its approved persons. Temporary this subpart.
pending Convention cases and adoption accreditation is governed by the

records to other accredited agencies, provisions of subpart N of this part. § 96.69 Filing of complaints against
approved persons, or a State archive, as Unless otherwise provided in subpart N accredited agencies and approved persons.
appropriate, under the oversight of the of this part, the provisions in this (a) Complaints described in § 96.68
accrediting entity, before its subpart do not apply to temporarily will be subject to review by the
accreditation or approval expires. accredited agencies. accrediting entity pursuant to §§ 96.71
and 96.72, when submitted as provided providers) and make such complaints accrediting entity must give priority to
in this section and § 96.70. available to the appropriate accrediting complaints submitted pursuant to
(b) Complaints against accredited entity and the Secretary; § 96.69(d);
agencies and approved persons by (2) Receive and maintain information (3) If the accrediting entity determines
parties to specific Convention adoption regarding action taken to resolve each that the agency or person may not
cases and relating to that case must first complaint by the accrediting entity or maintain accreditation or approval, it
be submitted by the complainant in the Secretary; must take adverse action pursuant to
writing to the primary provider and to (3) Track compliance with any subpart K of this part.
the agency or person providing adoption deadlines applicable to the resolution of (c) When the accrediting entity has
services, if a U.S. provider different complaints; completed its complaint review process,
from the primary provider. If the (4) Generate reports designed to show it must provide written notification of
complaint cannot be resolved through possible patterns of complaints; and the outcome of its investigation, and any
the complaint processes of the primary (5) Perform such other functions as actions taken, to the complainant, or to
provider or the agency or person the Secretary may determine. any other entity that referred the
providing the services (if different), or if (c) Forms and information necessary information.
the complaint was resolved by an to submit complaints to the Complaint (d) The accrediting entity will enter
agreement to take action but the primary Registry electronically or by such other information about the outcomes of its
provider or the agency or person means as the Secretary may determine investigations and its actions on
providing the service (if different) failed will be accessible through the complaints into the Complaint Registry
to take such action within thirty days of Department’s website to persons who as provided in its agreement with the
agreeing to do so, the complaint may wish to file complaints. Such forms will Secretary.
then be filed with the Complaint be designed to ensure that each (e) The accrediting entity may not
Registry in accordance with § 96.70. complaint complies with the take any action to discourage an
(c) An individual who is not party to requirements of § 96.69. individual from, or retaliate against an
a specific Convention adoption case but (d) Accrediting entities will have individual for, making a complaint,
who has information about an access to, and the capacity to enter data expressing a grievance, questioning the
accredited agency or approved person into, the Complaint Registry as the conduct of, or expressing an opinion
may provide that information by filing Secretary deems appropriate. about the performance of an accredited
it in the form of a complaint with the (e) Nothing in this part shall be
agency, an approved person, or the
Complaint Registry in accordance with construed to limit the Secretary’s
accrediting entity.
§ 96.70. authority to take such action as the
(d) A Federal, State, or local Secretary deems appropriate with § 96.72 Referral of complaints to the
government official or a foreign Central respect to complaints. Secretary and other authorities.
Authority may file a complaint with the (a) An accrediting entity must report
§ 96.71 Review by the accrediting entity of
Complaint Registry in accordance with promptly to the Secretary any
complaints against accredited agencies and
§ 96.70, or may raise the matter in approved persons. substantiated complaint that:
writing directly with the accrediting (1) Reveals that an accredited agency
(a) The accrediting entity must
entity, who will record the complaint in or approved person has engaged in a
establish written procedures, including
the Complaint Registry, or with the pattern of serious, willful, grossly
deadlines, for recording, investigating,
Secretary, who will record the negligent, or repeated failures to comply
and acting upon complaints it receives
complaint in the Complaint Registry, if with the standards in subpart F of this
pursuant to §§ 96.69 and 96.70(b)(1).
appropriate, and refer it to the part; or
The procedures must be consistent with
accrediting entity for review pursuant to (2) Indicates that continued
this section and be approved by the
§ 96.71 or take such other action as the accreditation or approval would not be
Secretary. The accrediting entity must
Secretary deems appropriate. in the best interests of the children and
make written information about its
§ 96.70 Operation of the Complaint complaint procedures available upon families concerned.
Registry. request. (b) An accrediting entity must, after
(a) The Secretary will establish a (b) If the accrediting entity determines consultation with the Secretary, refer, as
Complaint Registry to support the that a complaint implicates the appropriate, to a State licensing
accrediting entities in fulfilling their Convention, the IAA, or the regulations authority, the Attorney General, or other
oversight responsibilities, including the implementing the IAA: law enforcement authorities any
responsibilities of recording, screening, (1) The accrediting entity must verify substantiated complaints that involve
referring, and otherwise taking action on that the complainant has already conduct that is:
complaints received, and to support the attempted to resolve the complaint as (1) Subject to the civil or criminal
Secretary in the Secretary’s oversight described in § 96.69(b) and, if not, may penalties imposed by section 404 of the
responsibilities as the Secretary deems refer the complaint to the agency or IAA (42 U.S.C. 14944);
appropriate. The Secretary may provide person, or to the primary provider, for (2) In violation of the Immigration and
for the Complaint Registry to be funded attempted resolution through its Nationality Act (8 U.S.C. 1101 et seq.);
in whole or in part from fees collected internal complaint procedures; or
by the Secretary pursuant to section (2) The accrediting entity may (3) Otherwise in violation of Federal,
403(b) of the IAA (42 U.S.C. 14943(b)) conduct whatever investigative activity State, or local law.
or by the accrediting entities. (including site visits) it considers (c) When an accrediting entity makes
(b) The Complaint Registry will: necessary to determine whether any a report pursuant to paragraphs (a) or (b)
(1) Receive and maintain records of relevant accredited agency or approved of this section, it must indicate whether
complaints about accredited agencies, person may maintain accreditation or it is recommending that the Secretary
temporarily accredited agencies, and approval as provided in § 96.27. The take action to debar the agency or
approved persons (including complaints provisions of §§ 96.25 and 96.26 govern person, either temporarily or
concerning their use of supervised requests for and use of information. The permanently.
§ 96.73 [Reserved] advise an accredited agency or approved expires. It must also execute the plans
person in writing of any deficiencies in required by §§ 96.33(e) and 96.42(d)
Subpart K—Adverse Action by the its performance that may warrant an under the oversight of the accrediting
Accrediting Entity adverse action and provide it with an entity, and transfer its pending
§ 96.74 Scope. opportunity to demonstrate that an Convention cases and adoption records
adverse action would be unwarranted to other accredited agencies, approved
The provisions in this subpart
before the adverse action is imposed. If persons, or a State archive, as
establish the procedures governing
the accrediting entity takes the adverse appropriate. When the agency or person
adverse action by an accrediting entity
action without such prior notice, it must is unable to transfer such Convention
against accredited agencies and
provide a similar opportunity to cases or adoption records in accordance
approved persons. Temporary
demonstrate that the adverse action was with the plans or as otherwise agreed by
accreditation is governed by the
unwarranted after the adverse action is the accrediting entity, the accrediting
provisions in subpart N of this part. entity will so advise the Secretary who,
Unless otherwise provided in subpart N imposed, and may withdraw the adverse
action based on the information with the assistance of the accrediting
of this part, the provisions of this entity, will coordinate efforts to identify
subpart do not apply to temporarily provided.
(c) The provisions in §§ 96.25 and other accredited agencies or approved
accredited agencies. persons to assume responsibility for the
96.26 govern requests for and use of
§ 96.75 Adverse action against accredited information. cases and to transfer the records to other
agencies or approved persons not in accredited agencies or approved
substantial compliance. § 96.77 Responsibilities of the accredited persons, or to public domestic
agency, approved person, and accrediting
The accrediting entity must take authorities, as appropriate.
entity following adverse action by the
adverse action when it determines that (d) The accrediting entity must notify
accrediting entity.
an accredited agency or approved the Secretary, in accordance with
(a) If the accrediting entity takes an procedures established in its agreement
person may not maintain accreditation adverse action against an agency or
or approval as provided in § 96.27. The with the Secretary, when it takes an
person, the action will take effect adverse action that changes the
accrediting entity is authorized to take immediately unless the accrediting
any of the following actions against an accreditation or approval status of an
entity agrees to a later effective date. agency or person. The accrediting entity
accredited agency or approved person (b) If the accrediting entity suspends
whose compliance the entity oversees. must also notify the relevant State
or cancels the accreditation or approval
Each of these actions by an accrediting licensing authority as provided in the
of an agency or person, the agency or
entity is considered an adverse action agreement.
person must immediately, or by any
for purposes of the IAA and the later effective date set by the accrediting § 96.78 Accrediting entity procedures to
regulations in this part: entity, cease to provide adoption terminate adverse action.
(a) Suspending accreditation or services in all Convention cases. In the (a) The accrediting entity must
approval; case of suspension, it must consult with maintain internal petition procedures,
(b) Canceling accreditation or
the accrediting entity about whether to approved by the Secretary, to give
approval;
transfer its Convention adoption cases accredited agencies and approved
(c) Refusing to renew accreditation or
and adoption records. In the case of persons an opportunity to terminate
approval;
(d) Requiring an accredited agency or cancellation, it must execute the plans adverse actions on the grounds that the
approved person to take a specific required by §§ 96.33(e) and 96.42(d) deficiencies necessitating the adverse
corrective action to bring itself into under the oversight of the accrediting action have been corrected. The
compliance; and entity, and transfer its Convention accrediting entity must inform the
(e) Imposing other sanctions adoption cases and adoption records to agency or person of these procedures
including, but not limited to, requiring other accredited agencies, approved when it informs them of the adverse
an accredited agency or approved persons, or a State archive, as action pursuant to § 96.76(a). An
person to cease providing adoption appropriate. When the agency or person accrediting entity is not required to
services in a particular case or in a is unable to transfer such Convention maintain procedures to terminate
specific Convention country. cases or adoption records in accordance adverse actions on any other grounds, or
with the plans or as otherwise agreed by to maintain procedures to review its
§ 96.76 Procedures governing adverse the accrediting entity, the accrediting adverse actions, and must obtain the
action by the accrediting entity. entity will so advise the Secretary who, consent of the Secretary if it wishes to
(a) The accrediting entity must decide with the assistance of the accrediting make such procedures available.
which adverse action to take based on entity, will coordinate efforts to identify (b) An accrediting entity may
the seriousness and type of violation other accredited agencies or approved terminate an adverse action it has taken
and on the extent to which the persons to assume responsibility for the only if the agency or person
accredited agency or approved person cases, and to transfer the records to demonstrates to the satisfaction of the
has corrected or failed to correct other accredited agencies or approved accrediting entity that the deficiencies
deficiencies of which it has been persons, or to public domestic that led to the adverse action have been
previously informed. The accrediting authorities, as appropriate. corrected. The accrediting entity must
entity must notify an accredited agency (c) If the accrediting entity refuses to notify an agency or person in writing of
or approved person in writing of its renew the accreditation or approval of its decision on the petition to terminate
decision to take an adverse action an agency or person, the agency or the adverse action.
against the agency or person. The person must cease to provide adoption (c) If the accrediting entity described
accrediting entity’s written notice must services in all Convention cases upon in paragraph (b) of this section is no
identify the deficiencies prompting expiration of its existing accreditation or longer providing accreditation or
imposition of the adverse action. approval. It must take all necessary approval services, the agency or person
(b) Before taking adverse action, the steps to complete its Convention cases may petition any accrediting entity with
accrediting entity may, in its discretion, before its accreditation or approval jurisdiction over its application.
(d) If the accrediting entity cancels or (3) A denial of an application made § 96.83 Suspension or cancellation of
refuses to renew an agency’s or person’s after cancellation or debarment by the accreditation or approval by the Secretary.
accreditation or approval, and does not Secretary. (a) The Secretary must suspend or
terminate the adverse action pursuant to (c) In accordance with section cancel the accreditation or approval
paragraph (b) of this section, the agency 202(c)(3) of the IAA (42 U.S.C. granted by an accrediting entity when
or person may reapply for accreditation 14922(c)(3)), an accredited agency or the Secretary finds, in the Secretary’s
or approval. Before doing so, the agency discretion, that the agency or person is
approved person that is the subject of an
or person must request and obtain substantially out of compliance with the
adverse action by an accrediting entity
permission to make a new application standards in subpart F of this part and
may petition the United States district
from the accrediting entity that that the accrediting entity has failed or
court in the judicial district in which
cancelled or refused to renew its refused, after consultation with the
the agency is located or the person
accreditation or approval or, if such Secretary, to take action.
resides to set aside the adverse action (b) The Secretary may suspend or
entity is no longer designated as an
imposed by the accrediting entity. The cancel the accreditation or approval
accrediting entity, from any alternate
accrediting entity designated by the United States district court shall review granted by an accrediting entity if the
Secretary to give such permission. The the adverse action in accordance with 5 Secretary finds that such action:
accrediting entity may grant such U.S.C. 706. When an accredited agency (1) Will protect the interests of
permission only if the agency or person or approved person petitions a United children;
demonstrates to the satisfaction of the States district court to review the (2) Will further U.S. foreign policy or
accrediting entity that the specific adverse action of an accrediting entity, national security interests; or
deficiencies that led to the cancellation the accrediting entity will be considered (3) Will protect the ability of U.S.
or refusal to renew have been corrected. an agency as defined in 5 U.S.C. 701 for citizens to adopt children under the
(e) If the accrediting entity grants the the purpose of judicial review of the Convention.
agency or person permission to reapply, adverse action. (c) If the Secretary suspends or
the agency or person may file an cancels the accreditation or approval of
§ 96.80 [Reserved] an agency or person, the Secretary will
application with that accrediting entity
in accordance with subpart D of this take appropriate steps to notify both the
Subpart L—Oversight of Accredited accrediting entity and the Permanent
part. Agencies and Approved Persons by Bureau of the Hague Conference on
(f) Nothing in this section shall be the Secretary Private International Law.
construed to prevent an accrediting
entity from withdrawing an adverse § 96.81 Scope. § 96.84 Reinstatement of accreditation or
action if it concludes that the action was The provisions in this subpart approval after suspension or cancellation
based on a mistake of fact or was establish the procedures governing by the Secretary.
otherwise in error. Upon taking such adverse action by the Secretary against (a) An agency or person may petition
action, the accrediting entity will take accredited agencies and approved the Secretary for relief from the
appropriate steps to notify the Secretary persons. Temporary accreditation is Secretary’s suspension or cancellation
and the Secretary will take appropriate governed by the provisions in subpart N of its accreditation or approval on the
steps to notify the Permanent Bureau of of this part. Unless otherwise provided grounds that the deficiencies
the Hague Conference on Private in subpart N of this part, the provisions necessitating the suspension or
International Law. in this subpart do not apply to cancellation have been corrected. If the
temporarily accredited agencies. Secretary is satisfied that the
§ 96.79 Administrative or judicial review of
adverse action by the accrediting entity.
deficiencies that led to the suspension
§ 96.82 The Secretary’s response to or cancellation have been corrected, the
(a) Except to the extent provided by actions by the accrediting entity. Secretary shall, in the case of a
the procedures in § 96.78, an adverse suspension, terminate the suspension
action by an accrediting entity shall not (a) There is no administrative review
by the Secretary of an accrediting or, in the case of a cancellation, notify
be subject to administrative review. the agency or person that it may reapply
(b) Section 202(c)(3) of the IAA (42 entity’s decision to deny accreditation
for accreditation or approval to the same
U.S.C. 14922(c)(3)) provides for judicial or approval, nor of any decision by an
accrediting entity that handled its prior
review in Federal court of adverse accrediting entity to take an adverse
application for accreditation or
actions by an accrediting entity, action.
approval. If that accrediting entity is no
regardless of whether the entity is (b) When informed by an accrediting longer providing accreditation or
described in § 96.5(a) or (b). When any entity that an agency has been approval services, the agency or person
petition brought under section 202(c)(3) accredited or a person has been may reapply to any accrediting entity
raises as an issue whether the approved, the Secretary will take with jurisdiction over its application. If
deficiencies necessitating the adverse appropriate steps to ensure that relevant the Secretary terminates a suspension or
action have been corrected, the information about the accredited agency permits an agency or person to reapply
procedures maintained by the or approved person is provided to the for accreditation or approval, the
accrediting entity pursuant to § 96.78 Permanent Bureau of the Hague Secretary will so notify the appropriate
must first be exhausted. Adverse actions Conference on Private International accrediting entity. If the Secretary
are only those actions listed in § 96.75. Law. When informed by an accrediting terminates a suspension, the Secretary
There is no judicial review of an entity that it has taken an adverse action will also take appropriate steps to notify
accrediting entity’s decision to deny that impacts an agency’s or person’s the Permanent Bureau of the Hague
accreditation or approval, including: accreditation or approval status, the Conference on Private International Law
(1) A denial of an initial application; Secretary will take appropriate steps to of the reinstatement.
(2) A denial of an application made inform the Permanent Bureau of the (b) Nothing in this section shall be
after cancellation or refusal to renew by Hague Conference on Private construed to prevent the Secretary from
the accrediting entity; and International Law. withdrawing a cancellation or
suspension if the Secretary concludes effect on the date specified in the order accredited agencies or approved
that the action was based on a mistake and will specify a date, not earlier than persons, or to public domestic
of fact or was otherwise in error. Upon three years later, on or after which the authorities, as appropriate.
taking such action, the Secretary will agency or person may petition the
take appropriate steps to notify the Secretary for withdrawal of the § 96.88 Review of suspension,
cancellation, or debarment by the
accrediting entity and the Permanent temporary debarment. If the Secretary Secretary.
Bureau of the Hague Conference on withdraws the temporary debarment,
Private International Law. the agency or person may then reapply (a) Except to the extent provided by
for accreditation or approval to the same the procedures in § 96.84, an adverse
§ 96.85 Temporary and permanent action by the Secretary shall not be
debarment by the Secretary.
accrediting entity that handled its prior
application for accreditation or subject to administrative review.
(a) The Secretary may temporarily or approval. If that accrediting entity is no (b) Section 204(d) of the IAA (42
permanently debar an agency from longer providing accreditation or U.S.C. 14924(d)) provides for judicial
accreditation or a person from approval review of final actions by the Secretary.
approval services, the agency or person
on the Secretary’s own initiative, at the When any petition brought under
may apply to any accrediting entity with
request of DHS, or at the request of an section 204(d) raises as an issue whether
jurisdiction over its application.
accrediting entity. A debarment of an (b) In the case of a permanent the deficiencies necessitating a
accredited agency or approved person debarment order, the order will take suspension or cancellation of
will automatically result in the effect on the date specified in the order. accreditation or approval have been
cancellation of accreditation or approval The agency or person will not be corrected, procedures maintained by the
by the Secretary, and the accrediting permitted to apply again to an Secretary pursuant to § 96.84(a) must
entity shall deny any pending request
accrediting entity for accreditation or first be exhausted. A suspension or
for renewal of accreditation or approval.
approval, or to the Secretary for cancellation of accreditation or
(b) The Secretary may issue a
debarment order only if the Secretary, in termination of the debarment. approval, and a debarment (whether
(c) Nothing in this section shall be temporary or permanent) by the
the Secretary’s discretion, determines
construed to prevent the Secretary from Secretary are final actions subject to
that:
(1) There is substantial evidence that withdrawing a debarment if the judicial review. Other actions by the
the agency or person is out of Secretary concludes that the action was Secretary are not final actions and are
compliance with the standards in based on a mistake of fact or was not subject to judicial review.
subpart F of this part; and otherwise in error. Upon taking such (c) In accordance with section 204(d)
(2) There has been a pattern of action, the Secretary will take of the IAA (42 U.S.C. 14924(d)), an
serious, willful, or grossly negligent appropriate steps to notify the agency or person that has been
failures to comply, or other aggravating accrediting entity and the Permanent suspended, cancelled, or temporarily or
circumstances indicating that continued Bureau of the Hague Conference on permanently debarred by the Secretary
accreditation or approval would not be Private International Law. may petition the United States District
in the best interests of the children and § 96.87 Responsibilities of the accredited Court for the District of Columbia, or the
families concerned. For purposes of this agency, approved person, and accrediting United States district court in the
paragraph: entity following suspension, cancellation, judicial district in which the person
(i) ‘‘The children and families or debarment by the Secretary. resides or the agency is located,
concerned’’ include any children and If the Secretary suspends or cancels pursuant to 5 U.S.C. 706, to set aside the
any families whose interests have been the accreditation or approval of an action.
or may be affected by the agency’s or agency or person, or debars an agency
person’s actions; § 96.89 [Reserved]
or person, the agency or person must
(ii) A failure to comply with § 96.47 cease to provide adoption services in all
(home study requirements) shall Subpart M—Dissemination and
Convention cases. In the case of Reporting of Information by
constitute a ‘‘serious failure to comply’’ suspension, it must consult with the
unless it is shown by clear and Accrediting Entities
accrediting entity about whether to
convincing evidence that such transfer its Convention adoption cases § 96.90 Scope.
noncompliance had neither the purpose and adoption records. In the case of
nor the effect of determining the The provisions in this subpart govern
cancellation or debarment, it must the dissemination and reporting of
outcome of a decision or proceeding by execute the plans required by
a court or other competent authority in information on accredited agencies and
§§ 96.33(e) and 96.42(d) under the approved persons by accrediting
the United States or the child’s country oversight of the accrediting entity, and
of origin; and entities. Temporary accreditation is
transfer its Convention adoption cases governed by the provisions of subpart N
(iii) Repeated serious, willful, or
and adoption records to other accredited of this part and, as provided for in
grossly negligent failures to comply
with § 96.47 (home study requirements) agencies, approved persons, or a State § 96.110, reports on temporarily
by an agency or person after archive, as appropriate. When the accredited agencies must comply with
consultation between the Secretary and agency or person is unable to transfer this subpart.
the accrediting entity with respect to such Convention cases or adoption
records in accordance with the plans or § 96.91 Dissemination of information to
previous noncompliance by such agency the public about accreditation and approval
or person shall constitute a pattern of as otherwise agreed by the accrediting
entity, the accrediting entity will so status.
serious, willful, or grossly negligent

failures to comply. advise the Secretary who, with the (a) Once the Convention has entered
assistance of the accrediting entity, will into force for the United States, the
§ 96.86 Length of debarment period and coordinate efforts to identify other accrediting entity must maintain and
reapplication after temporary debarment. accredited agencies or approved persons make available to the public on a
(a) In the case of a temporary to assume responsibility for the cases, quarterly basis the following
debarment order, the order will take and to transfer the records to other information:
(1) The name, address, and contact entity must make semi-annual reports to may not be temporarily approved.
information for each agency and person the Secretary that summarize for the Temporary accreditation is only
it has accredited or approved; preceding six-month period the available to agencies that apply by the
(2) The names of agencies and persons following information: transitional application deadline and
to which it has denied accreditation or (1) The accreditation and approval who complete the temporary
approval that have not subsequently status of applicants, accredited agencies, accreditation process by the deadline for
been accredited or approved; and approved persons; initial accreditation or approval in
(3) The names of agencies and persons (2) Any instances where it has denied accordance with § 96.19.
that have been subject to withdrawal of accreditation or approval;
temporary accreditation, suspension, (3) Any adverse actions taken against § 96.96 Eligibility requirements for
temporary accreditation.
cancellation, refusal to renew an accredited agency or approved
accreditation or approval, or debarment person and any withdrawals of (a) An accrediting entity may not
by the accrediting entity or the temporary accreditation; temporarily accredit an agency unless
Secretary; and (4) All substantiated complaints the agency demonstrates to the
(4) Other information specifically against accredited agencies and satisfaction of the accrediting entity
authorized in writing by the accredited approved persons and the impact of that:
agency or approved person to be such complaints on their accreditation (1) It has provided adoption services
disclosed to the public. or approval status; in fewer than 100 intercountry adoption
(b) Once the Convention has entered (5) The number, nature, and outcome cases in the calendar year preceding the
into force for the United States, each of complaint investigations carried out year in which the transitional
accrediting entity must make the by the accrediting entity as well as the application deadline falls. For purposes
following information available to shortest, longest, average, and median of this subpart, the number of cases
individual members of the public upon length of time expended to complete includes all intercountry adoption cases
specific request: complaint investigations; and that were handled by, or under the
(1) Confirmation of whether or not a (6) Any discernible patterns in responsibility of, the agency, regardless
specific agency or person has a pending complaints received about specific of whether they involved countries
application for accreditation or agencies or persons, as well as any party to the Convention;
approval, and, if so, the date of the discernible patterns of complaints in the (2) It qualifies for nonprofit tax
application and whether it is under aggregate. treatment under section 501(c)(3) of the
active consideration or whether a (b) The accrediting entity must report Internal Revenue Code of 1986, as
decision on the application has been to the Secretary within thirty days of the amended, or for nonprofit status under
deferred; and time it learns that an accredited agency the law of any State;
(3) It is properly licensed under State
(2) If an agency or person has been or approved person:
law to provide adoption services in at
subject to a withdrawal of temporary (1) Has ceased to provide adoption
least one State. It is, and for the last
accreditation, suspension, cancellation, services; or
three years prior to the transitional
refusal to renew accreditation or (2) Has transferred its Convention
application deadline has been,
approval, or debarment, a brief cases and adoption records.
providing intercountry adoption
statement of the reasons for the action. (c) In addition to the reporting
services;
requirements contained in § 96.72, an
§ 96.92 Dissemination of information to (4) It has the capacity to maintain and
accrediting entity must immediately
the public about complaints against provide to the accrediting entity and the
notify the Secretary in writing:
accredited agencies and approved persons. Secretary, within thirty days of request,
(1) When it accredits an agency or
Once the Convention has entered into all of the information relevant to the
approves a person;
force for the United States, each Secretary’s reporting requirements
(2) When it renews the accreditation
accrediting entity must maintain a under section 104 of the IAA (42 U.S.C.
or approval of an agency or person; or
written record documenting each 14914); and
(3) When it takes an adverse action (5) It has not been involved in any
complaint received and the steps taken against an accredited agency or
in response to it. This information may improper conduct related to the
approved person that impacts its provision of intercountry adoption or
be disclosed to the public as follows: accreditation or approval status or
(a) The accrediting entity must verify, other services, as evidenced in part by
withdraws an agency’s temporary the following:
upon inquiry from a member of the accreditation.
public, whether there have been any (i) The agency has maintained its
substantiated complaints against an § 96.94 [Reserved] State license without suspension or
accredited agency or approved person, cancellation for misconduct during the
and if so, provide information about the Subpart N—Procedures and Standards entire period in which it has provided
status and nature of any such Relating to Temporary Accreditation intercountry adoption services;
complaints. (ii) The agency has not been subject
§ 96.95 Scope. to a finding of fault or liability in any
(b) The accrediting entity must have
procedures for disclosing information (a) The provisions in this subpart administrative or judicial action in the
about complaints that are substantiated. govern only temporary accreditation. three years preceding the transitional
The provisions in subpart F of this part application deadline; and
§ 96.93 Reports to the Secretary about cover full accreditation of agencies and (iii) The agency has not been the
accredited agencies and approved persons approval of persons. subject of any criminal findings of fraud
and their activities. (b) Agencies that meet the eligibility or financial misconduct in the three
(a) The accrediting entity must make requirements established in this subpart years preceding the transitional
annual reports to the Secretary on the may apply for temporary accreditation application deadline.
information it collects from accredited that will run for a one-or two-year (b) An accrediting entity may not
agencies and approved persons period following the Convention’s entry temporarily accredit an agency unless
pursuant to § 96.43. The accrediting into force for the United States. Persons the agency also demonstrates to the
satisfaction of the accrediting entity that apply for a one-year period of temporary whether to approve the application for
it has a comprehensive plan for accreditation. The one-year period will temporary accreditation. The site visit
applying for and achieving full commence on the date that the may include interviews with birth
accreditation before the agency’s Convention enters into force for the parents, adoptive parent(s), prospective
temporary accreditation expires, and is United States. adoptive parent(s), and adult adoptee(s)
taking steps to execute that plan. (b) Two-year temporary accreditation. served by the agency, interviews with
An agency that has provided adoption the agency’s employees, and interviews
§ 96.97 Application procedures for services in fewer than 50 intercountry with other individual(s) knowledgeable
temporary accreditation.
adoptions in the calendar year about its provision of adoption services.
(a) An agency seeking temporary preceding the year in which the It may also include a review of on-site
accreditation must submit an transitional application date falls may documents. The accrediting entity must,
application to an accrediting entity with apply for a two-year period of temporary to the extent possible, advise the agency
jurisdiction over its application, with accreditation. The two-year period will in advance of documents it wishes to
the required fee(s), by the transitional commence on the date that the review during the site visit. The
application deadline established Convention enters into force for the provisions of §§ 96.25 and 96.26 will
pursuant to § 96.19 of this part. United States. govern requests for and use of
Applications for temporary information.
accreditation that are filed after the § 96.99 Converting an application for (c) Before deciding whether to grant
temporary application deadline will not temporary accreditation to an application temporary accreditation to the agency,
be considered. for full accreditation.
the accrediting entity may, in its
(b) An agency may not seek temporary (a) The accrediting entity may, in its discretion, advise the agency of any
accreditation and full accreditation at discretion, permit an agency that has deficiencies that may hinder or prevent
the same time. The agency’s application applied for temporary accreditation to its temporary accreditation and defer a
must clearly state whether it is seeking convert its application to an application decision to allow the agency to correct
temporary accreditation or full for full accreditation, subject to the deficiencies.
accreditation. An eligible agency’s submission of any additional required (d) The accrediting entity may only
option of applying for temporary documentation, information, and fee(s). use the criteria contained in § 96.96
accreditation will be deemed to have The accrediting entity may grant a when determining whether an agency is
been waived if the agency also submits request for conversion if the accrediting eligible for temporary accreditation.
a separate application for full entity has determined that the applicant (e) The eligibility criteria contained in
accreditation prior to the transitional is not in fact eligible for temporary § 96.96 and the standards contained in
application deadline. The agency may accreditation based on the number of § 96.104 do not eliminate the need for
apply to only one accrediting entity at adoption cases it has handled; if the an agency to comply fully with the laws
a time. agency has concluded that it can of the jurisdictions in which it operates.
(c) The accrediting entity must complete the full accreditation process An agency must provide adoption
establish and follow uniform sooner than expected; or for any other services in Convention cases consistent
application procedures and must make reason that the accrediting entity deems with the laws of any State in which it
information about these procedures appropriate. operates and with the Convention and
available to agencies that are (b) If an application is converted after the IAA.
considering whether to apply for the transitional application deadline, it
temporary accreditation. The will be treated as an application filed § 96.101 Notification of temporary
accrediting entity must evaluate the after the transitional application accreditation decisions.
applicant for temporary accreditation in deadline, and the agency may not (a) The accrediting entity must notify
a timely fashion. The accrediting entity necessarily be provided an opportunity agencies of its temporary accreditation
must use its best efforts to provide a to complete the accreditation process in decisions on the uniform notification
reasonable opportunity for an agency time to be included on the initial list of date to be established by the Secretary
that applies for temporary accreditation accredited agencies and approved pursuant to § 96.58(a). On that date, the
by the transitional application deadline persons that the Secretary will deposit accrediting entity must inform each
to complete the temporary accreditation with the Permanent Bureau of the Hague applicant and the Secretary in writing
process by the deadline for initial Conference on Private International whether the agency has been granted
accreditation or approval. If an agency Law. temporary accreditation. The
seeks temporary accreditation under accrediting entity may not provide any
§ 96.100 Procedures for evaluating information about its temporary
this subpart, it will be included on the
applicants for temporary accreditation. accreditation decisions to any agency or
initial list deposited by the Secretary
with the Permanent Bureau of the Hague (a) To evaluate an agency for to the public until the uniform
Conference on Private International Law temporary accreditation, the accrediting notification date. If the Secretary
only if it is granted temporary entity must: requests information on the interim or
accreditation by the deadline for initial (1) Review the agency’s written final status of an agency prior to the
accreditation or approval established application and supporting uniform notification date, the
pursuant to § 96.19(a). documentation; and accrediting entity must provide such
(2) Verify the information provided by information to the Secretary.
§ 96.98 Length of temporary accreditation the agency, as appropriate. The (b) Notwithstanding paragraph (a) of
period. accrediting entity may also request this section, the accrediting entity may,
(a) One-year temporary accreditation. additional documentation and in its discretion, communicate with
An agency that has provided adoption information from the agency in support agencies about the status of their
services in 50–99 intercountry of the application as it deems necessary. pending applications for temporary
adoptions in the calendar year (b) The accrediting entity may also accreditation for the sole purpose of
preceding the year in which the decide, in its discretion, that it must affording them an opportunity to correct
transitional application date falls may conduct a site visit to determine deficiencies that may hinder their
temporary accreditation. When all jurisdictions in which it provides § 96.105 Adverse action against a
informed by an accrediting entity that adoption services; temporarily accredited agency by an
an agency has been temporarily (b) It does not engage in any improper accrediting entity.
accredited, the Secretary will take conduct related to the provision of (a) If the accrediting entity determines
appropriate steps to ensure that relevant intercountry adoption services, as that an agency it has temporarily
information about a temporarily evidenced in part by the following: accredited is substantially out of
accredited agency is provided to the (1) It maintains its State license compliance with the standards in
Permanent Bureau of the Hague without suspension or cancellation for § 96.104, it may, in its discretion,
Conference on Private International misconduct; withdraw the agency’s temporary
Law. (2) It is not subject to a finding of fault accreditation.
or liability in any administrative or (b) The accrediting entity must notify
§ 96.102 Review of temporary judicial action; and the agency in writing of any decision to
accreditation decisions. (3) It is not the subject of any criminal withdraw the agency’s temporary
There is no administrative or judicial findings of fraud or financial accreditation. The written notice must
review of an accrediting entity’s misconduct; identify the deficiencies necessitating
decision to deny temporary (c) It adheres to the standards in the withdrawal. Before withdrawing the
accreditation. § 96.36 prohibiting child buying; agency’s temporary accreditation, the
(d) It adheres to the standards for accrediting entity may, in its discretion,
§ 96.103 Oversight by accrediting entities. responding to complaints in accordance advise a temporarily accredited agency
(a) The accrediting entity must with § 96.41; in writing of any deficiencies in its
oversee an agency that it has (e) It adheres to the standards on performance that may warrant
temporarily accredited by monitoring adoption records and information withdrawal and provide it with an
whether the agency is in substantial relating to Convention cases in opportunity to demonstrate that
compliance with the standards accordance with § 96.42; withdrawal would be unwarranted
contained in § 96.104 and through the (f) It adheres to the standards on before withdrawal occurs. If the
process of assessing the agency’s providing data to the accrediting entity accrediting entity withdraws the
application for full accreditation when in accordance with § 96.43; agency’s temporary accreditation
it is filed. The accrediting entity must (g) When acting as the primary without such prior notice, it must
also investigate any complaints or other provider in a Convention adoption it provide a similar opportunity to
information that becomes available to it complies with the standards in §§ 96.44 demonstrate that the withdrawal was
about an agency it has temporarily and 96.45 when using supervised unwarranted after the withdrawal
accredited. Complaints against a providers in the United States and it occurs, and may reinstate the agency’s
temporarily accredited agency must be complies with the standards in §§ 96.44 temporary accreditation based on the
handled in accordance with subpart J of and 96.46 when using supervised information provided.
this part. For purposes of subpart J of providers or, to the extent permitted by (c) The provisions of §§ 96.25 and
this part, the temporarily accredited § 96.14(c), other foreign providers in a 96.26 govern requests for and use of
agency will be treated as if it were a Convention country; information.
fully accredited agency, except that: (h) When performing or approving a (d) The accrediting entity must notify
(1) The relevant standards will be home study in an incoming Convention the Secretary, in accordance with
those contained in § 96.104 rather than case, it complies with the standards in procedures established in its agreement
those contained in subpart F of this part; § 96.47; with the Secretary, when it withdraws
and (i) When performing or approving a or reinstates an agency’s temporary
(2) Enforcement action against the child background study or obtaining accreditation. The accrediting entity
agency will be taken in accordance with consents in an outgoing Convention must also notify the relevant State
§ 96.105 and § 96.107 rather than in case, it complies with the standards in licensing authority as provided in the
accordance with subpart K of this part. § 96.53; agreement.
(b) The accrediting entity may (j) When performing Convention
determine, in its discretion, that it must functions in incoming or outgoing cases, § 96.106 Review of the withdrawal of
conduct a site visit to investigate a it complies with the standards in § 96.52 temporary accreditation by an accrediting
complaint or other information or or § 96.55; entity.
otherwise monitor the agency. (k) It has a plan to transfer its (a) A decision by an accrediting entity
(c) The accrediting entity may Convention cases and adoption records to withdraw an agency’s temporary
consider any information that becomes if it ceases to provide or is no longer accreditation shall not be subject to
available to it about the compliance of permitted to provide adoption services administrative review.
the agency. The provisions of §§ 96.25 in Convention cases. The plan includes (b) Withdrawal of temporary
and 96.26 govern requests for and use of provisions for an organized closure and accreditation is analogous to
information. reimbursement to clients of funds paid cancellation of accreditation and is
for services not yet rendered; therefore an adverse action pursuant to
§ 96.104 Performance standards for (l) It is making continual progress § 96.75. In accordance with section
temporary accreditation. toward completing the process of 202(c)(3) of the IAA (42 U.S.C.
The accrediting entity may not obtaining full accreditation by the time 14922(c)(3)), a temporarily accredited
maintain an agency’s temporary its temporary accreditation expires; and agency that is the subject of an adverse
accreditation unless the agency (m) It takes all necessary and action by an accrediting entity may
demonstrates to the satisfaction of the appropriate measures to perform any petition the United States district court
accrediting entity that it is in substantial tasks in a Convention adoption case that in the judicial district in which the
compliance with the following the Secretary identifies are required to agency is located to set aside the
standards: comply with the Convention, the IAA, adverse action imposed by the
(a) The agency follows applicable or any regulations implementing the accrediting entity. The United States
licensing and regulatory requirements in IAA. district court shall review the adverse
action in accordance with 5 U.S.C. 706. agency, approved person, or a State limited to, costs for completing the
When a temporarily accredited agency archive, as appropriate. temporary accreditation process,
petitions a United States district court to (b) Where the agency is unable to complaint review and investigation,
review the adverse action of an transfer such Convention cases or routine oversight and enforcement, and
accrediting entity, the accrediting entity adoption records in accordance with the other data collection and reporting
will be considered an agency as defined plan or as otherwise agreed by the activities). The temporary accreditation
in 5 U.S.C. 701 for the purpose of accrediting entity, the accrediting entity fee may not include the costs of site
judicial review of the adverse action. will so advise the Secretary who, with visit(s). The schedule of fees may
the assistance of the accrediting entity, provide, however, that, in the event that
§ 96.107 Adverse action against a will coordinate efforts to identify other a site visit is required to determine
temporarily accredited agency by the
Secretary.
accredited agencies or approved persons whether to approve an application for
to assume responsibility for the cases, temporary accreditation, to investigate a
(a) The Secretary may, in the and to transfer the records to other complaint or other information, or
Secretary’s discretion, withdraw an accredited agencies or approved otherwise to monitor the agency, the
agency’s temporary accreditation if the persons, or to public domestic accrediting entity may assess additional
Secretary finds that the agency is authorities, as appropriate. fees for actual costs incurred for travel
substantially out of compliance with the (c) When an agency’s temporary and maintenance of evaluators and for
standards in § 96.104 and the accreditation is withdrawn or any additional administrative costs to
accrediting entity has failed or refused, reinstated, the Secretary will, where the accrediting entity. In such a case,
after consultation with the Secretary, to appropriate, take steps to inform the the accrediting entity may estimate the
take appropriate enforcement action. Permanent Bureau of the Hague additional fees and may require that the
(b) The Secretary may also withdraw
Conference on Private International estimated amount be paid in advance,
an agency’s temporary accreditation if
Law. subject to a refund of any overcharge.
the Secretary finds that such action;
(d) An agency whose temporary Temporary accreditation may be denied
(1) Will protect the interests of
accreditation has been withdrawn may or withdrawn if the estimated fees are
children;
(2) Will further U.S. foreign policy or continue to seek full accreditation or not paid.
national security interests; or may withdraw its pending application (b) An accrediting entity must make
(3) Will protect the ability of U.S. and apply for full accreditation at a later its schedule of fees available to the
citizens to adopt children under the time. Its application for full public, including prospective applicants
Convention. accreditation must be made to the same for temporary accreditation, upon
(c) If the Secretary withdraws an accrediting entity that granted its request. At the time of application, the
agency’s temporary accreditation, the application for temporary accreditation. accrediting entity must specify the fees
Secretary will notify the accrediting If that entity is no longer providing to be charged in a contract between the
entity. accreditation services, it may apply to parties and must provide notice to the
any accrediting entity with jurisdiction applicant that no portion of the fee will
§ 96.108 Review of the withdrawal of over its application. be refunded if the applicant fails to
temporary accreditation by the Secretary. (e) If an agency continues to pursue become temporarily accredited.
(a) There is no administrative review its application for full accreditation or Dated: January 13, 2006.
of a decision by the Secretary to subsequently applies for full Maura Harty,
withdraw an agency’s temporary accreditation, the accrediting entity may
accreditation. Assistant Secretary for Consular Affairs,
take the circumstances of the Department of State.
(b) Section 204(d) of the IAA (42 withdrawal of its temporary
U.S.C. 14924(d)) provides for judicial [FR Doc. 06–1067 Filed 2–14–06; 8:45 am]
accreditation into account when
review of final actions by the Secretary. evaluating the agency for full BILLING CODE 4710–06–P
Withdrawal of temporary accreditation, accreditation.
which is analogous to cancellation of
accreditation, is a final action subject to § 96.110 Dissemination and reporting of DEPARTMENT OF STATE
judicial review. information about temporarily accredited
agencies. 22 CFR Parts 97 and 98
(c) An agency whose temporary
accreditation has been withdrawn by The accrediting entity must [Public Notice 5297]
the Secretary may petition the United disseminate and report information
RIN 1400–AB69
States District Court for the District of about agencies it has temporarily
Columbia, or the United States district accredited as if they were fully Intercountry Adoption—Preservation
court in the judicial district in which accredited agencies, in accordance with of Convention Records
the agency is located, to set aside the subpart M of this part.
action pursuant to section 204(d) of the AGENCY: Department of State.
§ 96.111 Fees charged for temporary
IAA (42 U.S.C. 14924(d)). ACTION: Final rule.
accreditation.
§ 96.109 Effect of the withdrawal of (a) Any fees charged by an accrediting SUMMARY: This rule finalizes the
temporary accreditation by the accrediting entity for temporary accreditation will proposed rule published on September
entity or the Secretary. include a non-refundable fee for 15, 2003 to implement the records
(a) If an agency’s temporary temporary accreditation set forth in a preservation requirements of the 1993
accreditation is withdrawn, it must schedule of fees approved by the Hague Convention on Protection of
cease to provide adoption services in all Secretary as provided in § 96.8(a). Such Children and Co-operation in Respect of
Convention cases and must execute the fees may not exceed the costs of Intercountry Adoption (the Convention)
plan required by § 96.104(k) under the temporary accreditation and must and the Intercountry Adoption Act of
oversight of the accrediting entity, and include the costs of all activities 2000 (the IAA). The IAA requires that
transfer its Convention adoption cases associated with the temporary the Department of State (the
and adoption records to an accredited accreditation cycle (including, but not Department) issue rules to govern the

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Rule: Intercountry Adoption Act of 2000: Hague Convention&#8212 Agency Accreditation and Person Approval

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Wednesday,

February 15, 2006

accreditation/approval system that does explaining our overall conception of the

A. Primary Providers and Supervised responsible for all supervised providers

that it is unnecessary to add a definition no reason at this time to limit the

which accreditation, approval, or Section 96.12—Authorized Adoption implementing proclamation. We note,

persons seeking to provide Convention § 96.33(f), as we agree that only adoption.

the § 96.38 training requirements on Response: We have clarified in practice issues.

documents. person is not in substantial compliance

procedures as well as contact authorities. foreign Central Authority directly with

under § 96.91(a), available on a more parent(s) before a referral of a child is

years. visit. or if the Department finds such action

persons seeking to be accredited or

transfer of its adoption records. information and reports on the entities).

pending Convention cases and adoption accreditation is governed by the

serious, willful, or grossly negligent

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