COMMENTS TO ACTON-BURNELL ON PROPOSED REGULATIONS ON IMPLEMENTATION OF THE HAGUE CONVENTION ON INTERCOUNTRY ADOPTION
OVERVIEW
The proposed regulations on intercountry adoption appear to have been written by a small group of self-appointed and self-interested adoption industry representatives. The resulting draft epitomizes the naivete and lack of seriousness about accountability and regulation that has plagued adoption for decades. The regulations as proposed would almost certainly result in an unacceptable recreation or even amplification of existing problems which the Hague Convention on Intercountry Adoption and the International Adoption Act (IAA) sought to eliminate. Nowhere in the proposed regulations are the rights of children upheld. Similarly, the statutory rights granted to adoptive families under the IAA would be directly infringed by the proposed regulations. Perhaps most startling, the proposed regulations make no reference to the clear and unambiguous requirements of the Convention. Consequently, the proposed regulations violate the IAA and the Convention in several respects.
Portions of the proposed regulations are correct; however, the proposed regulations’ shortcomings are vastly more numerous. Those shortcomings can be categorized in four parts:
_ First, the failure to vindicate the rights of adoptees and prospective adoptees’ families. While the proposed regulations give an occasional nod to parents’ rights, they fail entirely to address the rights of the child upon which the Convention is based. Those rights cannot be adequately addressed in separate regulations, but must be integrated in each and every action and interpretation under the Convention and IAA.
_ Second, the proposed regulations attempt to reduce the transparency of provider behavior. Transparency is the baseline requirement of the Convention and IAA. Both instruments were adopted for the express purpose of ending misbehavior by service providers and preventing further misconduct. Instead, the proposed regulations attempt to cloak misbehavior.
_ Third, the proposed regulations eliminate the law enforcement function required under the IAA and any hope of accountability. The proposed regulations would establish the State Department as a business consultant to providers rather than the law enforcement officer intended by the Convention. This self-help, self-improvement model with a lack of clearly defined objectives and penalties has had devastating consequences for American children in foster care. By instituting a “fox guarding the hen house” mentality instead of effective oversight, consumers of adoption services and their children will remain vulnerable to abuses. The proposed regulations adopt improper criteria for selecting Accrediting Entities and would steer the award of the accreditation contract to a single bidder, which has failed to demonstrate in any objective, measurable fashion the ability to improve the safety or outcomes for children or families.
It should also be noted that any discussion of exempting the states from accreditation is unacceptable. Currently 20 states are being sued as a result of their poor performance in child welfare and adoption services. Even after extensive remediation, fatality rates of children under the care of some state agencies have increased, and abuse and neglect of children in the system continue unabated. Despite the passage of the Adoption and Safe Families Act of 1997, many states continue to defy federal mandates, especially around adoption services. The states need more, not less, accountability.
_ Fourth, the proposed regulations abandon the non-profit basis required by the Convention. Instead, they seek to give substantial financial benefits to the largest and most profitable vendors of children to the detriment of smaller agencies and other service providers. The regulations as proposed would be tantamount to engaging in unfair trade practices. They appear to severely restrict the entry of new agencies into the adoption business. These apparent restrictions would create the unfortunate situation whereby the market is controlled by an even smaller group of self-selected providers.
Current proposals will certainly not inspire consumer confidence. It is precisely because Congress determined that the industry is incapable of regulating itself that it imposed the IAA. The regulations must reflect the legislative intent.
Children’s and Families’ Rights
The Convention and IAA require the Secretary of State to use the accreditation and monitoring process to eliminate misconduct in Convention adoptions. The draft regulations are designed to impose standards detrimental to the rights of children and families. They create new defenses for adoption providers to complaints of misconduct. In addition, the rights of adoptees and families to their records are slashed back from the standards dictated by the IAA and the Convention. Similarly, the draft fails to require any medical screening. Most notably, the draft fails to define best interests of the child.
Final pre-Secretarial review must be assigned to an independent citizens’ panel that is untainted by industry connections. The draft must be revised to elevate the rights of children and families and to reduce the influence of the adoption industry that the law is intended to reform.
Transparency
The drafters of the proposed regulations have elected to override the Convention and IAA by closing access to records which are vital to protecting children and families. In sharp contrast to all other federal licensing and permitting processes, the drafters propose to conceal applications for accreditation and approval from public view. For some inexplicable reason, adoption providers are to receive a cloak of secrecy to which federal banks, pension plans, broadcasters, miners, securities dealers, credit unions and tax-exempt organizations are not entitled. The drafters similarly shield the background and history of applicants for Accrediting Entity and deny the Secretary enforceable controls.
Accountability
The draft provides no enforceable mechanism for accountability by the industry or the Accrediting Entities. It provides no central source of information for misconduct which consumers may access and no independent resources when abuses occur. The drafters need to refocus on the underlying maxim of the law. The franchise to engage in international adoption services is a privilege. Those persons who seek the privilege must demonstrate constantly their worthiness.
Financial Disclosure
The Convention is the law of the land with statutory force. The IAA does not contradict the Convention requirement that all adoption services must be provided on a non-profit basis. While we permit for-profit persons to provide adoption services, they must still do so on a non-profit basis.
On the subject of financial disclosure, it must be noted that the cost of adoption services in the United States is already too high. Access to adoption by prospective families is severely restricted on the basis of class and income. While many well-qualified families are excluded from adoption due to skyrocketing costs, many more children are denied families as a result of poor business planning, weak fund-raising skills, and exorbitant fee structures by both non-profit and for-profit adoption providers. There is no greater barrier to finding families for the millions of orphaned children in the U.S. and around the world than money. Consumers of a variety of other services in this country are provided with nearly complete transparency as purchasers. Adoption services providers should be held to a higher, not lower, standard than automobile manufacturers or appliance dealers.
Draft Statement of Work and Draft Convention Accreditation and Approval Procedures
These two drafts reflect a misunderstanding of the Convention, the IAA, and Congressional intent -- or a desire to subvert them. The role of the Accrediting Entity or Entities is not to be a social worker or business advisor to adoption providers. The role of the Accrediting Entity is to be the independent regulator of intercountry adoptions as defined by the IAA. The Accrediting Entity also serves as the law enforcement agency with jurisdiction over adoption providers conducting Hague adoptions. The qualifications for the bulk of management and staff of the Accrediting Entity must be heavily weighted in favor of policy-based regulation, consumer protection, financial oversight, civil rights protection, criminal investigative experience, forensic auditing, and criminal prosecution. Under no circumstances can the employment of recent adoption provider personnel be permitted, nor can former employees of an Accrediting Entity be permitted to obtain employment with adoption providers in the two years following termination. There can be no revolving door between the regulator and the regulated. Furthermore, there should be a mandatory public comment period to ensure that consumers can comment on pending applications by providers for accreditation.
All submissions to an Accrediting Entity must be public record, unredacted except for individual Social Security numbers.
The proper relationship between the Secretary and an Accrediting Entity is a service contract, not a cooperative agreement. There is no justification for the initial term of the contract to exceed the three years specified in the IAA. The contract with the Accrediting Entity should be subject to mandatory independent and public review, if ten percent or more of agencies accredited or persons approved by the entity have substantiated violations of the Convention, the IAA, the Foreign Corrupt Practices Act, or their application. The contract with the Accrediting Entity should also be subject to review, if disruptions and dissolutions in placements by Accredited Agencies and Approved Persons evaluated favorably by the Accrediting Entity exceed ten percent of placements by those same providers. A finding that the Accrediting Entity has failed to perform under the terms of its contract should result in the termination of the contract.
GENERAL COMMENTS
Our specific remarks follow the outline of the proposed regulations. First, the proposed regulations make it necessary to revisit the intent of the Convention and IAA. Valid regulations conform to the intent of the underlying statutory authority. All other regulations are invalid. Regulations are of two types: interpretive and legislative. Legislative regulations are issued pursuant to a specific legislative grant and are reviewed against the same standards which apply to statutes. Regulations falling outside a specific legislative grant of authority are interpretive, and have no more authority than the reasoned opinion of any other source. Legislative regulations, if they do not infringe any fundamental rights or suspect groups, must be rationally related to the purpose of the specific grant of regulatory authority. The IAA makes several specific grants of regulatory authority. Each of these grants follow the express intent of the Act and the Convention “to protect the rights of, and prevent abuses against, children, birth families, and adoptive parents involved in adoptions (or prospective adoptions) subject to the Convention, and to ensure that such adoptions are in the children’s best interests....” Assuming that orphans and immigrants from impoverished countries are not a suspect class or classes (a dubious possibility), each regulation must be rationally related to this express legislative purpose. If orphans are a suspect class (as they have been found to be by many federal courts), then the regulation must be narrowly tailored to serve a compelling national interest within the scope of the specific grant of authority.
The IAA includes several grants of regulatory authority. The Secretary of State “may prescribe such regulations as may be necessary to carry out central authority functions on behalf of the United States.” IAA, P.L. No. 106-279, Sec. 101(c). Additionally, the Secretary may establish by regulation: criteria for State agencies applying to become accrediting entities (IAA Sec. 202(a)(2)(B)(iii)); the standards and procedures to be used by accrediting entities for the accreditation of agencies and the approval of persons to provide adoption services in the United States in cases subject to the Convention (IAA Sec.203(a)(1)); and, alternative procedures for relative adoptions (IAA Sec. 502(a)). The Secretary is required to issue regulations: requiring accrediting entities to frequently and carefully monitor compliance by agencies and approved persons with the requirements for background studies of adoptive families ( IAA Sec. 204(e)(2)); and, establishing fees for services provided by the Department of State (IAA Sec. 403(b)(1)). In fulfilling each of these statutorily permitted or required regulatory grants, the drafters must ask (because the courts most assuredly will), how does this regulation elevate the rights of adoptees and adoptive families over the privileges of agencies, facilitators, attorneys and others who abuse or profit from adoption. If a regulation promotes the interests of agencies, facilitators, attorneys or others rather than the interests of adoptees and their families, then the regulation is invalid.
The Preamble to the proposed regulations recites the objectives listed in Article I of the Convention, however, the Preamble fails to note the incorporation by reference of the United Nations Convention on the Rights of the Child of 20 November 1989 or the meaning of “...fundamental rights as recognized in international law.” The United States is a signatory to, but, has not ratified the U.N. Convention on the Rights of the Child. Ratification of the Convention (on Inter-country Adoption) is a concession by the United States that those provisions of the Convention on the Rights of the Child relevant to adoption are accurate expressions of “generally accepted international law.” Consequently those provisions relevant to adoption are binding on the United States. So, the regulations must incorporate those provisions of international law.
The Convention on the Rights of the Child [“hereinafter CRC”] clearly states as a preeminent principle that, “In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities legislative bodies, the best interests of the child shall be a primary consideration.” CRC Art. 3.1. Among those interests and rights is “as far as possible, the right to know and be cared for by his or her parents.” CRC Art. 7.1. “States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child’s best interests.” CRC Art. 9.3. “States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.” CRC Art. 12.1. States shall, “[r]ecognize that inter-country adoption may be considered as an alternative means of child’s care, if the child cannot be placed in a foster or an adoptive family or cannot in any suitable manner be cared for in the child’s country of origin; [and shall e]nsure that the child concerned by inter-country adoption enjoys safeguards and standards equivalent to those existing in the case of national adoption.” CRC Art. 21 (b)&( c). Furthermore States shall “[t]ake all appropriate measures to ensure that, in inter-country adoption, the placement does not result in improper financial gain for those involved in it.” CRC Art. 21 (d). In short, international law accepted by the United States requires that: all inter-country adoptions be open adoptions unless the parent is an imminent danger to the child; the child be empowered to express his or her own wishes; fees be tightly regulated; and, no child be placed internationally unless no family placement is available in their country of origin. The proposed regulations must incorporate these standards.
SPECIFIC COMMENTS
The drafters of the proposed regulations create loopholes for misconduct on page 4, 2nd full paragraph. The draft states, “In instances in which the person or entity in the other Hague country is an employee or direct agent of the US-based adoption provider, it must work under the supervision and responsibility of the US-based Convention-accredited agency or Convention-approved person.” This statement implies that public authorities, in-direct agents and agents physically outside a Hague country insulate the US provider from responsibility. To the extent such an implication was intended, the implication and any regulation based on the intention is invalid. The IAA does not except public authorities and does not permit the attenuation of responsibility geographically or by interposing layers of intermediaries:
...No person may offer or provide adoption services in connection with a Convention adoption in the United States unless that person—is accredited or approved...or is providing such services through or under the supervision and responsibility of an accredited agency or approved person.
IAA Sec. 201(a). Moreover, the statutory standard for the responsibility of Accredited Agencies and Approved Persons is “ensure”, a strict liability standard. See, Secs. 203(b)(1)(A)(ii), 303(a)(1), 203(b)(1)(C) & 203(b)(1)(F). An early draft of H.R. 2909 provided an exception for public authorities from the requirement of accreditation. That exception was excised from the IAA. Consequently, public authorities must also obtain accreditation.
On page 5, in the first full sentence, the drafters indicate a complete misunderstanding of even minimal standards. They suggest that “only the case files of Hague cases will be reviewed for compliance....” Unless all the case files of an agency or person are reviewed, evidence of side transactions, kickbacks, bribery and steering can be readily disguised by mislabeling the file or padding fees on non-Hague files. No competent auditor or investigator would permit that restriction. The prior conduct of applicants cannot be fairly evaluated without examining all of their adoption activity. Furthermore compliance with the Act cannot be determined without detailed review of financial records, corporate documents and written procedures.
Also on page 5, 2nd full paragraph, the drafters assert that they relied upon the Convention, the minimum legislative requirements and “generally recognized standards of practice in the field of international adoption.” Nevertheless the standards embodied in the draft proposed regulations fail to incorporate the majority of the Conventions’ requirements or to fulfill the express legislative intent of the IAA. No references are listed to Convention Articles, nor are the sources of the “generally recognized standards of practice” identified.
96.1 Definitions
Page 8 (n) Child Welfare Services as defined directly violates the IAA and has no basis in law. “Recruiting and identifying adoptive parents” is an adoption service, and if performed “in connection with a Convention adoption” may only be performed by an accredited agency or approved person. IAA Sec. 3(A). Similarly, “arranging or providing temporary foster care” is overbroad to the extent it encompasses all or part of IAA Sec. 3(3)(F). Child welfare services are properly defined as those services performed by public agencies which would be performed by public agencies for children and their biological parents if resident in the United States to safeguard or improve the health and well being of children, including but not limited to: investigation of allegations of child abuse or neglect; provision of family preservation services; special education; and court approved child removal to foster care.
(q) Convention record. To the extent the definition exceeds the express language of the IAA Sec. 3(11), the excess should be stricken.
(r) Country of origin. Insert before the period, “before the child was moved to facilitate a possible adoption”.
(t) Deemed status. Under no circumstance can deemed status or partially deemed status be justified. There is no statutory authority for deemed status or any other form of “grandfathering.” Furthermore, it violates the legislative intent of the IAA and threatens the rights of orphans and their families. Various forms of “grandfathering” were requested by trade groups during the legislative debate. Only section 203( c) was retained to permit a temporary status for community based agencies.
(u) disruption & (v) dissolution. Disruption is commonly understood to include dissolutions and was so understood by the drafters of the IAA. There is no statutory authority for drawing a distinction, and the use of a distinction infringes the rights of orphans and their families and elevates the privileges of providers. Furthermore, court action is not required to create either a disruption or dissolution. Voluntary relinquishment or abandonment suffices. These definitions are obviously intended to disguise and obscure the poor records of agencies and persons with high rates of failure. As such they are invalid.
(x) Legal services. The definition is appropriate and adequate.
Other Necessary Definitions Omitted From the Draft
( ) agent means any person who provides a service (to an Accredited Agency or Approved Person, at the direction of an Accredited Agency, or on the recommendation of an Accredited Agency or Approved Person) in the course of an adoption.
( ) client or person served means the child, the adopting family and (where parental rights have not been previously terminated by governmental action) the birth parents.
NOTE: The definition of clients and persons served should be conformed throughout the document and referenced wherever services and accountability protocols are referenced - in particular, the section on complaints and oversight. Ultimate accountability to the client must be maintained under all circumstances, and, where the child is a minor or incapacitated, reference should be made to the child's representative(s) wherever representation is required. We recognize that this definition will require a substantial conformance change throughout the document.
( ) best interests of the child means that the proposed placement can reasonably be expected to produce better physical, mental and social outcomes than any foreseeable alternative placement.
( ) date of application means the day on which the Applicant transmits the Application to the Secretary.
( ) market cost the cost of the same services if purchased by a willing client from a willing vendor with client and vendor each in complete knowledge of all relevant facts and acting without duress. Sources of duress may include but are not limited to: a history of infertility; prior death of a child; unmarried status; and, emotional attachment to a child at risk.
( ) fee means any thing of value received by an Accredited Agency or Approved Person, an applicant for Accreditation or Approval, or an Agent of an accredited Agency or Approved Person, from an adoptive family, any person acting on behalf of such adoptive family, or any person acting at the request of such adoptive family, within three years before or after, a placement with such adoptive family.
NOTE: Adoption providers may complain that the definition of fee would require the provider to predict a family’s future contributions in order to comply with fee disclosure provisions. In fact, the definition is intended to prohibit the solicitation of contributions until the placement is finalized and stabilized. Unethical providers routinely coerce contributions from adoptive families with threats of lost referrals and opposition to finalization.
( ) pendency means the period of time from the transmittal of an application to the Secretary or the Secretary’s designee until the Applicant’s receipt of the notice of Accreditation, Approval or denial.
96.3 Functions of the Central Authority
Page 10, 3rd sentence. Responsibility is not delegable, only authority is. In the context of the U.S. federal government, authority is only delegable to federal employees or agencies. The Secretary of State may contract for services to support his responsibilities, but, may not legally delegate them to private or non-federal entities. The drafts create substantial confusion over who can exercise Central Authority functions. Only the Secretary, Attorney General, and state courts can exercise Central Authority functions in the United States. The functions assigned to the Attorney General and state courts are severely circumscribed.
96.4 Central Authority Functions Performed by Other Individuals or Entities
( c) Accrediting entities. Responsibility is not delegable, only authority is. In the context of the U.S. federal government, authority is only delegable to federal employees or agencies. The Secretary of State may contract for services to support his responsibilities, but, may not legally delegate them to private or non-federal entities.
The designated accrediting entity cannot fulfill its obligations to the Secretary if it limits the review of applicants to the standards included in the proposed regulations or any regulations. The applicants must comply (or be rejected) with all the provisions and the intent of the Convention and IAA. Attempting to permit accreditation or approval on any other standard infringes the rights of orphans and their families, and elevates the privileges of providers, and consequently the regulation is invalid. Neither the Secretary nor any accrediting entity may by rule or practice create a safe harbor for providers to the injury of the legislation’s intended beneficiaries.
96.5 Applicability of Accreditation and Approval Requirements
96.5( c)fundamentally mis-states the law. The drafters are attempting to create a defense to mis-conduct by suggesting only one agency or person has responsibility for each adoption. The IAA is clear. Multiple providers may be providing adoption services in a single case, and each such person must supervise and be responsible for all other providers on a case. The proposed regulation as drafted elevates the privileges of providers to the detriment of the rights of orphans and their families, and is invalid. The regulation intends to permit multiple providers to point fingers at each other and avoid responsibility, because the provider with primary responsibility cannot be determined.
96.5( c)(2)intentionally and directly violates the IAA. A carve-out was specifically considered and rejected by the drafters of the IAA. The Secretary has no authority to permit the provision of adoption services by a state authority in Hague adoptions, unless such authority is accredited. The state authorities have histories of incompetence and misconduct which nearly match that of fee charging private agencies.
( c) must be eliminated.
(d) line 2, change “shall” to “must”, shall is grammatically incorrect.
96.5 (e) (1)last sentence, after each “compliance” insert “and performance”. This change is required to preserve role of Convention accredited or approved entity. In addition, any reference to subcontractors must provide for appropriate and comprehensive look-through provisions. Not only should Accredited Entities bear responsibility for the actions of subcontractors, but the same standards of disclosure applicable to accredited Entities and Approved Persons must be applicable to subcontractors as well. At a minimum, the additional contract provisions we have provided below in section 96.5 (e)(3) must be included. Failure to include these provisions would permit a network of subcontractors to maintain control of an Accredited Agency with minimal capital and insurance, while reaping huge profits from unethical practices by the controlling subcontractors.
96.5 (e)(2)5th line strike “on a fee for service”, impermissively limits the responsibility of the provider. The non-approved/accredited entity would be allowed to argue that they were improperly hired on a commission basis as a defense to other violations.
96.5 (e)(3) ADD CONTRACT REQUIREMENTS:
( ) Contractor shall agree to submit to the jurisdiction of the U.S. for any disputes arising from the adoption.
( ) Contractor shall name an agent for service of process resident in the United States.
( ) Contractor shall make all representations and disclosures required to be made by the accredited or approved entity in the application for accreditation or approval.
( ) Contractor shall maintain insurance in the type and amount required of accredited or approved entities.
( ) Any person making a contribution to or purchasing adoption related services from an Accredited Person, Approved Person or person claiming to act under the responsibility of an Accredited Person or Approved Person shall have a unilateral right to renounce such contribution or purchase contract within 21 days after the contribution or execution of the contract. In the event of a renunciation, the Accredited Agency, Approved Person or person claiming to act under the responsibility of an Accredited Agency or Approved Person shall refund any amounts received from the renouncing party and waive in writing any and all claims against the renouncing party.
( ) Each contract for the provision of adoption services shall provide that the amounts of charges shall be subject to judicial review at the time the adoption is approved in the adoptive family’s state of residence, and that any reduction ordered by the court shall be binding on the parties. Any such reduction may not be the basis for withdrawal of services or the refusal to complete the adoption.
(vi) 3rd line, strike “or” and insert “and”.
96.6 Exemptions
(b) Strike everything after the first sentence. The stricken material directly contravenes the statute.
(d) insert before the period “or acts”, otherwise you encourage illegal behavior in states other than the parents’ state of residence.
96.13 Standards for Convention accreditation and Convention Approval
(a) The IAA requires compliance with all the Act’s requirements, as well as, all the Convention’s requirements. Compliance with 85% of the requirements is non-compliance. Any regulation which tends to infringe the rights of orphans and their families and elevates the privileges of providers is invalid. Only 100% compliance is compliance. The issue of substantial compliance only enters into the performance of Accrediting Entities and whether their contracts as Accrediting Entities shall be continued.
(b) There is no statutory authority for “deeming” full or partial compliance, and no possible excuse for “grandfathering” existing providers. Once again the proposed regulation elevates the privileges of a favored class of providers over the rights of children and families, and therefore is invalid. Neither state agency licensure nor accreditation by existing entities have demonstrated the ability to prevent or even detect the types of misconduct cited by Congress. Reliance on the failed norms of existing accreditation programs is not only misplaced but a violation of the IAA.
96.13 A Statutory and Convention Requirements
The proposed regulations under this title demonstrate a complete lack of understanding of the legislative intent. A subjective review of poorly defined procedures is inadequate to demonstrate compliance with the Convention or IAA. The fundamental problem is the misunderstanding of the term “accreditation” in the international context. Accreditation in the United States means recognition by a trade association or other organization under the control of a trade association. The U.S. understanding of accreditation is linked to “quality improvement” or “self help.” In the international context, accreditation is a special legal standing granted by a government similar to licensure. Internationally accreditation means the accredited person has satisfied the legal standards to the satisfaction of their government. In the U.S., accreditation means the accredited person is not at the bottom of their industry vis a vis profitability, worker’s rights or some other subjective goal. In the context of the Convention, the international definition applies.
The application process must be created from the ground up. First and foremost applications and supporting documents must be available in full to the public concurrently with submission. No pre-review or other under-handed process can be permitted to conceal the histories of applicants. All applications must be submitted under oath with notice of the penalties of perjury. All applications must be made to the Secretary of State through the Accrediting Entity as the Secretary’s contractor. The regulations must provide and the application form include the following applicant’s representations:
Applicant represents that Applicant and Applicant’s owners, officers, directors, employees and agents are and will continue to be in full compliance with the Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption done 29 May 1993 and the International Adoption Act, P.L. No. 106-279 as amended.
Applicant represents that Applicant and Applicant’s owners, officers, directors, employees and agents have had no criminal convictions or complaints filed against them in the ten years prior to the date of application or at any time after the date of application, except as fully described on this application.
Applicant represents that Applicant and Applicant’s owners, officers, directors, employees and agents are not and have never been engaged in or implicated in the sexual abuse or exploitation of a child, except as fully described on this application.
Applicant represents that Applicant and Applicant’s owners, officers, directors, employees and agents have never participated in or been implicated in the abduction of a child, except as fully described on this application.
Applicant represents that Applicant and Applicant’s owners, officers, directors, employees and agents have not been a party to any lawsuit or any claim arising out of or connected directly or indirectly to any adoption, potential adoption or the provision of any adoption related service in the ten years prior to the date of application or after the date of application, except as fully described on this application.
Applicant represents that Applicant and Applicant’s owners, officers, directors, employees and agents have not been a party to any lawsuit or any claim based on financial misconduct in the ten years prior to the date of application or after the date of application, except as fully described on this application.
Applicant represents that Applicant and Applicant’s owners, officers, directors, employees and agents have never been a party to a professional license revocation proceeding, except as fully described on this application.
Applicant represents that Applicant and Applicant’s owners, officers, directors, employees and agents will never and have never offered or provided any compensation to any birth parent, relative of a birth parent, household member of a birth parent, public employee, or public official to induce or encourage any decision, regarding the termination of parental rights or the placement of a child , except as fully described on this application.
Applicant represents that Applicant has identified each and every employee, agent or contractor Applicant will utilize, hire, employ or recommend, on more than one occasion, for the provision of any adoption related service other than transportation and hotel provided at market cost.
Applicant represents that Applicant will provide to each current or prospective client a complete copy of this application immediately or before the execution of any contract for adoption services.
Applicant represents that no contract, executed or in the current course of performance during the pendency of this application or any period of accreditation or approval, between a client and Applicant or Applicant’s owners, officers, directors, employees or agents, contains or will contain an enforceable assignment, indemnification, limitation or waiver of liability in favor of Applicant or Applicant’s owners, officers, directors, employees or agents.
Applicant represents that during the pendency of this application and any period of Accreditation or Approval, Applicant has in force and will maintain in force liability insurance of the amount and type required by the Secretary.
Applicant waives any and all claims against any person or persons for breach of any confidentiality agreement arising in whole or in part out of: the provision of adoption related services or any claim or lawsuit arising out of the provision of adoption related services, which breach results from disclosures made in response to this application. Applicant further agrees to indemnify and defend any person or persons for breach of any confidentiality agreement arising in whole or in part out of: the provision of adoption related services or any claim or lawsuit arising out of the provision of adoption related services, which violation results from disclosures made in response to this application.
Applicant represents that all Applicant’s owners, officers, directors, employees or agents have waived any and all claims against any person or persons for breach of any confidentiality agreement arising in whole or in part out of: the provision of adoption related services or any claim or lawsuit arising out of the provision of adoption related services, which breach results from disclosures made in response to this application. Applicant further represents that all Applicant’s owners, officers, directors, employees or agents have agreed to indemnify and defend any person or persons for breach of any confidentiality agreement to which any such owners, officers, directors, employees or agents of Applicant’s is a party arising in whole or in part out of: the provision of adoption related services or any claim or lawsuit arising out of the provision of adoption related services, which breach results from disclosures made in response to this application.
Applicant represents that all adoption related services provided by Applicant and Applicant’s owners, officers, directors, employees and agents are and will be provided on a non-profit basis; that adequate records will be maintained to demonstrate that non-profit practice; and, that all compensation provided by Applicant is and will be directly comparable to compensation paid to similarly situated persons not engaged in adoption services.
Applicant represents that Applicant and Applicant’s owners, officers, directors, employees and agents have not in the past ten (10) years provided adoption related services to any child or family which has resulted in an adoption disruption or dissolution, except as fully described on this application.
Applicant represents that Applicant has and will include in any and all of Applicant’s advertising and public relations materials published during the pendency of this application, notice of this application, the public’s right to comment, and the addresses and telephone numbers of the accrediting entity and the Secretary.
Applicant represents that Applicant will provide to all clients, during the pendency of this application and any period of Accreditation or Approval, a full and fair description of the effect of choice of law and venue provisions including a detailed description of the effect on potential future litigation between Applicant and the client arising as a result of breach of the contract or tortuous conduct in relation to the contracted services.
Applicant agrees to provide access to Applicant’s place or places of business, business records, telephone records, financial records, owners, officers, directors, employees, and agents upon demand by audit and investigative personnel authorized by the Secretary or accrediting entity.
Applicant agrees to provide and to require Applicant’s owners, officers, directors, employees and agents to provide, to each client a customer satisfaction survey in the form prescribed by the Secretary, upon each occasion on which services are delivered to such client.
Applicant agrees to supplement this application within 15 days following the discovery of new material responsive to this application.
Applicant agrees that breach of any of the representations or agreements made on this application shall result in the suspension of the application, Accreditation and/or Approval until final resolution of all such breaches. Furthermore Applicant consents to and agrees that the Secretary and/or accrediting entity shall suspend for ten (10) days Applicant’s application, Accreditation and/or Approval upon the determination by the Secretary or the accrediting entity that reasonable cause exists to believe a breach of any of Applicant’s representations or agreements made on this Application has occurred. Applicant agrees that during the period of any such suspension, Applicant, Applicant’s owners, officers, directors, employees and agents shall not solicit nor accept, any new requests for adoption related services or compensation for adoption related services.
Furthermore the regulations should provide for mandatory customer satisfaction surveys as follows:
“ Customer satisfaction surveys shall bear the name and identification number of the Accredited Agency or Approved Person under whose responsibility the service was provided, and the name and identification number of the Accrediting Entity for such Accredited Agency or Approved Person. Customer satisfaction survey forms shall include a self mailer or detachable envelope pre-addressed to the Secretary. Clients shall be instructed by their service provider to mail the form directly and the service provider shall provide to each such client sufficient postage for the survey. The Secretary shall compile the results of all customer satisfaction surveys received by the Secretary. The compiled results shall be reported to the public quarterly categorized for each Accrediting Entity, Accredited Agency and Approved Person. The customer satisfaction survey forms shall be available to the public in the Secretary’s FOIA reading room with the identifiers of the clients redacted except for initials of names and home zip codes.”
“The Secretary shall solicit from the public comments on each application, modification of an application or renewal of an application. The public shall have 120 days from the date of such notice to submit comments to the Secretary.”
96.13 A.7 Medical Records
False, incomplete, purloined, missing and inaccessible medical records are one of the most common abuses cited by Congress for enactment of the IAA. The burden has been placed by the statute on the adoption provider to provide all available medical records and an accurate translation. The IAA also grants the Secretary the authority to issue regulations to establish standards for international adoption practice and the Accreditation or Approval of providers. The United States is the destination for 80% of international adoptions. The standards we set will be the world standard. So, industry complaints about the tardiness of foreign officials can be safely ignored. In order to minimally satisfy the intent of the IAA, the regulations must provide as follows:
The Accredited Agency or Approved Person shall, at least 60 days prior to any travel by the prospective parents or their agent to take custody of a child, provide to prospective adoptive parents for each prospective adoptive child all existing medical records such child or children, and an accurate translation into English.
The Accredited Agency or Approved Person may be excused by the Secretary from providing an accurate English language translation of a child’s medical records, if the Accredited Agency or Approved Person demonstrates by clear and convincing evidence that no persons exist who are capable and willing to translate such records.
The Accredited Agency or Approved Person shall test the accuracy of the medical records in each child’s case by providing for a physical examination of each child by a physician acceptable to the prospective adoptive parents.
The physical examination required by these regulations shall include but not be limited to–
a review of the child’s records
a growth and nutritional assessment
a general physical assessment
a developmental assessment
a review of immunizations
screening for vision, hearing and dental deficiencies
an age assessment
psychological screening if indicated
blood tests (that should or may include)
i) PPD for TB (purified protein derivative for tuberculosis) (even if child has had BCG (Bacillus CaCalmatte-Guerin))
ii) complete blood count with differential
iii) lead level
iv) neonatal metabolic screen (on a baby or child up to nine months)
v) Hepatitis B & C screen
vi) HIV screen
vii) Syphilis screen
vii) thyroid function screen
stool for O&P (ova and parasites)
hemoglobin electrophoresis if indicated
G6PD if indicated (Glucose-6-Phophate Dehydrogenase Deficiency)
urinalysis and culture if indicated
1.5 Complete copies of medical records shall be available from the agency or person, upon demand, thereafter to the adoptive parents and to the child or, as applicable, his legal representative(s) and/or qualified and duly authorized caregiver(s).
1.6 In recognition of the life-long nature of adoption, medical records shall continue to be available in the manner prescribed herein to the adoptive parents and to the child or, as applicable, his legal representative(s) upon and after the child reaches the age of majority.
96.13 A.3 The regulation should read as follows:
“The agency or person shall ensure that the homestudies of potential adoptive families satisfy the requirements of the IAA, Convention and those requirements required for licensure as an adoptive parent of a child from state foster care in the state of the prospective adoptive parent’s residence.”
Foster care homestudies have a required content while current international homestudies do not. Some international homestudies have been and are being conducted entirely by telephone. Fewer than 5% of international homestudies are reported as not recommending the family, while more than one third of foster care homestudies report unfavorably. In those rare instances that an unfavorable international homestudy has been written, the families can generally purchase a favorable international homestudy elsewhere. There is no national or international homestudy standard. The only statewide standards are those mandated for foster care adoptions. The regulations should require what little standards we have.
96.13 A.4 Criminal Background Checks
All criminal background checks are not created equally. The standard should be the FBI fingerprint check. All other forms are too limited.
96.13 A.12 Liability Insurance
The agency or person shall maintain in force liability insurance equal to the national median cost of providing lifetime residential care, treatment and education for a disabled infant with psychiatric complications based on a 70 year lifespan for each occurrence, with total coverage equal to the prior number multiplied by the greater of ten percent of cases handled annually or the number of cases handled annually multiplied by the agency’s or person’s percentage of dissolutions and disruptions in the prior five year period, but not less than $20,000,000. We will forward under separate cover an actuarial review of projected premiums for such coverage.
96.13 A.14 Non-profit Status
An agency seeking accreditation shall be a not-for-profit public foundation qualifying under I.R.C. Secs. 501( c)(1) or (3) and 170. Any person seeking approval shall maintain separate accounts for adoption related services and shall report those accounts annually to the Secretary. Any such person shall demonstrate upon demand by the Secretary or Accrediting Entity that all adoption services are provided on a non-profit basis.
The tax returns of all non-profit entities and the adoption accounts of all for-profit approved persons shall be public record.
96.13 B.2 Licenses or Credentials
There is no basis for making a distinction between the non-profit and for-profit agencies in the first two bullets.
96.13 B.5 Reporting of Placement, Disruptions and Dissolutions
The requested information is useless unless reported by country of origin, age at placement, sex and age at disruption. All dissolutions are disruptions, not all disruptions are dissolutions.
96.13 C Oversight and Accountability
This subtitle should be Governance, since the standards included here have nothing to do with oversight or accountability. Accredited Agencies and Approved Persons cannot oversee themselves, nor can they be accountable to themselves.
96.13 C.1first line, “An agency” should be changed to read “any person other than an individual”. If the Accrediting Entity is going to meddle in the internal governance of agencies, the same level of interference should be imposed on Approved Persons.
96.13 C.2The legally preferred term for a human being acting in their own right is “individual” not “natural person.”
Section 96.13 C.4: Add at the end: "The agency or person shall not obtain from adoptive parents, prospective adoptive parents, birth parents or adoptees, prior to the completion of an adoption, any waiver of legal rights nor any statement that no representations (in general or by category) have been made about an adoptee or another party to the adoption. The agency or person may (1) identify specific persons by name or position whom the agency or person neither pays nor controls and for whom the agency or person cannot be responsible and (2) confirm in writing, to be acknowledged by the clients, that the agency or person has made specific representations to the client."
Ms. Coburn expressed concern at the June 18 meeting that such a provision might violate contractual rights under state law. The foregoing provision, however, would not impair the obligation of any existing contract, but would simply make it a condition of accreditation that the provider not obtain such waivers or disclaimers. Whether the surrender of such a waiver is prospective or retrospective, no violation or taking of contract rights occurs. The waiver is a voluntary choice made by the applicant. No applicant has a right to accreditation or approval. Accreditation and approval are privileges similar to motor vehicle operator’s licenses. It is a common form of regulation, both by the federal and the state governments, to prohibit certain types of agreements and to require that other agreements contain certain provisions. Consider the Federal Trade Commission's trade regulation rules, the truth-in-lending laws, the securities laws, etc.
The reasons for this provision were stated at length in the supplemental comments of the American Adoption Congress dated May 8, 2001, but only in hard copy. For convenience, we repeat them here: As several speakers noted at the April 2 hearing, many adoption providers require prospective adoptive parents to sign agreements waiving rights under the law or stating that the provider has made no representations about the child's condition or health. These agreements typically are signed when the parents first retain the agency, before the provider has identified any child to the parents. For instance, World Child, Inc. and the Frank Foundation require their clients to waive, at the outset, "any and all claims" that might arise in future against World Child and Frank; these providers also disclaim liability for the accuracy or completeness of any "medical and social information" that they might supply. Ferenc v. World Child, Inc., 977 F. Supp. 56, 60-61 (D.D.C. 1997). International Assistance Group of Pittsburgh ("IAG") requires all its clients, at the outset, (1) to "covenant and acknowledge that IAG makes no independent representations with regard to the medical condition of any child," (2) to agree that "IAG shall not be liable for any misrepresentation, false statement or untruth contained in the medical history provided by the orphanage," (3) to agree that IAG "disclaims liability to the parents, the children or to any other party with regard to the medical history or medical condition of the child to be adopted," and (4) to agree that "no representations, inducements, promises or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, which are not embodied" in the agreement. And a major, accredited provider requires its clients to "acknowledge that they understand there are no representations, warrantees or guarantees made by [the provider] about the particular medical and social condition of the child."
Such waivers and disclaimers have no legitimate function in international adoptions. Existing statutory and common law of the states (there is no relevant federal law) impose minimal requirements on adoption providers concerning disclosures about children. In the few cases where liability has been imposed concerning such disclosures or their absence (usually under the rubric of "wrongful adoption"), it has been because of deceit or negligence. In essence, providers are simply required to exercise due care and prohibited from lying. The waivers and disclaimers at issue seek to exempt providers from even these modest requirements. Any provider that cannot meet such requirements should not be arranging adoptions.
The consequences of failure to exercise due care and of misrepresentations in international adoptions have been horrendous. Adoptions have disrupted, stranding gravely disturbed children in custodial institutions thousands of miles from their native countries, and adoptive families have been impoverished and disintegrated by divorce. The law can do little to mend disrupted adoptions and families, but it can help avoid the economic harm. Damage awards can ameliorate the financial hardship imposed on adoptive families, and will also deter unethical providers from negligence and misrepresentation. Allowing providers to avoid the law's minimal requirements through waivers and disclaimers leaves adoptive families to bear the burdens created by the provider's failings.
Such waivers and disclaimers are imposed on prospective adoptive parents. They are not the result of a fair, arm's-length bargaining process Prospective adoptive parents are usually infertile and emotionally vulnerable. They become even more vulnerable when presented with a video tape or photograph of an appealing child. Often they fall in love or "bond" with the child, and become still more vulnerable. In international adoption, prospective adoptive parents are at an additional disadvantage because of the need to deal with foreign languages, laws and institutions. As a result, they are almost totally dependent on the providers. There is an overwhelming imbalance of bargaining power.
These broad disclaimers are almost always false in fact. As the examples at the beginning of this section illustrate, they typically state that the provider has made or will make no representations about the child to be adopted. That is contrary to all experience in this field. Prospective adoptive parents are full of questions about the children identified to them, and providers furnish answers. If providers are not responsible for negligence and misrepresentation, they are in effect selling children "as is." Such sales may be an acceptable practice in the used car business; they should have no place in adoption.
The Act contemplates and indeed requires that providers be liable for negligence. Section 203(b)(1)(E) requires providers to carry "adequate liability insurance for professional negligence." This requirement will have several salutary effects, but only if the providers are subject to liability The insurance will assure that if adoptive parents are injured by a provider's negligence, they will have a financial remedy. In effect, it will distribute the risk of such negligence among the adoptive parent clients of that provider, rather than crushing those who have the misfortune to receive a severely disturbed child. Furthermore, the insurance carriers will themselves act to assure due care by the providers in order to reduce the carriers' losses, just as happens in industrial and commercial liability coverage. All these benefits will be lost if providers are allowed to insulate themselves from liability by contractual language. Because of its economic consequences, the Act's requirement of insurance also mandates that waivers and disclaimers of this sort be prohibited by industry-wide regulation. Otherwise the insurers, in order to reduce their losses and maintain competitive premiums, will be forced to require their insured providers to extract such waivers and disclaimers from adoptive parents.
96.13 D Ethical Practices
96.13 D.1This paragraph appears to subject for-profit service providers to a lower standard of regulation than not-for-profit agencies in violation of the IAA and Convention. Strike “not-for-profit” and insert instead “person or”. Individuals are excepted by this language because they are not required to have governing bodies. See 96.13 C.1 above.
96.13 D.2: Article 8 of the Convention, which is now the law of the land (U. S. Const., Art. VI), states: Central Authorities shall take, directly or through public authorities, all appropriate measures to prevent improper financial or other gain in connection with an adoption and to deter all practices contrary to the objects of the Convention. Article 32 of the Convention states:
1 No one shall derive improper financial or other gain from an activity related to an intercountry adoption.
2 Only costs and expenses, including reasonable professional fees of persons involved in the adoption, may be charged or paid.
3 The directors, administrators and employees of bodies involved in an adoption shall not receive remuneration which is unreasonably high in relation to services rendered.
Article 8 thus requires the U. S. Government to enforce the provisions of Article 32 preventing "improper financial or other gain, profits in excess of costs and expenses, and unreasonably high remuneration."
Such enforcement requires that adoption providers be required, as a condition of accreditation or approval, to disclose their finances, including:
a. Revenues, including "contributions," and expenses, properly classified.
b. All remuneration (including perquisites) to individual owners, directors, administrators and employees, separately stated.
c. All payments to vendors and others who are related to the provider, its owners, directors and administrators, by either common ownership or family relationships.
d. All amounts paid by clients of the provider to professionals involved in the adoption, if the professionals are retained, recommended or referred to clients by the provider.
Audited figures should be required in all cases. The Accrediting Entity should set a maximum proper financial gain, in terms of the greater of a dollar amount or a percentage of costs and expenses. Where excessive gain is found, accreditation should be denied. In all cases, the information should be made publicly available, so that prospective adoptive parents and the public in general may know how large is
an agency's net income and how highly its executives and individual providers are remunerated.
96.13 D.5 Payments Made to Public Services
Only payments made by check or confirmed wire transfer directly to an authorized public body could be considered permissible.
96.13 E.2 Schedule of Fees
Change "made available" to "given", and add the following:
A written schedule of fees and expenses shall be provided to each prospective adoptive parent and schedule shall not be increased by more than ten percent between the execution of a contract and the finalization of the adoption. All amounts received by the agency or person shall be held in escrow until earned or paid to third parties. All amounts expended shall be accounted for in writing to the prospective parent and any unexpended balance refunded to such prospective parent. No contribution or donations shall be solicited or accepted from any prospective adoptive parent by the agency, person or any relation person. (This last sentence may be deleted if the definition of fee in 96.1 is adopted.)
96.13 E.3 Retention of Funds
This provision is totally inappropriate and an attempt to pass agency marketing costs and employee benefits costs on to adoptive families. If agencies want to provide additional programming they should solicit donations from persons other than prospective adoptive families.
96.13 E.4 Cash Transfers
There is never any excuse for encouraging families to carry or requesting families to pay cash to anyone involved in an adoption. If an agency or person feels compelled to pay a bribe, they should do so from their own funds and timely report the violation of the Foreign Corrupt Practices Act. The inclusion of this provision indicates a willingness to induce and encourage criminal conduct. Any risks associated with carrying large sums of cash should be borne by the provider and the provider’s agents.
96.13 E.5 Itemized Statement
The itemized statement must be binding on the provider and must be provided at least 3 days prior to the execution of a contract.
96.13 F Complaints and Appeals Subsections F.1 to F..4 should be replaced with a formal escalating complaint resolution system. See comments below. 96.13 F.4 in particular must be broadened to provide information not only of the designated accrediting entity but also levels of escalation beyond the accrediting entity.
96.13 F.4 Complaint Reporting
We recommend that the regulations, the Draft Convention Accreditation and Approval Procedures (Procedures) and the Statement of Work provide a formal, escalating complaint resolution procedure with mandated time frames and deadlines for each stage of the process. Such a tiered complaint process could be comprised of the following levels of review in a timely fashion: accredited agencies/approved persons, Ombudsman, accrediting entity and the State Department (either the Secretary’s Citizen Review Panel, Office of Children’s Issues or Office of Inspector General). The Regulations should not grant accredited agencies/approved persons (AA/AP) virtually unchecked authority to police their own possible misconduct. The Regulations should explicitly delineate the following elements of an effective complaint mechanism: the accrediting entities’ oversight function, complaint procedure, education of consumers about the complaint process, record keeping and reporting, and complaint resolution and sanctions. See specific mechanisms in 96.13 A above.
The Intercountry Adoption Act (IAA) Section 202 (b)(2) specifically requires that accrediting entities, as a function of their oversight responsibility, review complaints against Accredited Agencies (AA) and Approved Persons (AP), and the Act directs the accrediting entity to develop complaint review procedures that must be approved by the Secretary. Moreover, the IAA mandates that the State Department “shall monitor individual adoption cases involving U.S. citizens”. It is the Institute’s position that the complaint process in the current draft does not effectively implement the IAA. The draft regulations do not provide an adequate and meaningful complaint process that insures that AA/AP adhere to regulatory standards. It also does not provide prospective adoptive families, birth parents and other aggrieved parties a forum in which to seek redress.
Section 96.13.F of the draft regulations specifies internal complaint review mechanisms. This section is deficient in at least four ways.
F.1 confers on “clients” the “opportunity to lodge complaints or appeals directly to the agency or person”. Clients are not defined in the Regulations. See the definition in 96.1 above.
F.2 should specify time frames for an internal review procedure. The Institute recommends that complaints whose resolution is not time-sensitive be resolved within 45 days, but that the regulations should specify expedited review within 15 days for complaints that are of an urgent nature. (ie., any that present a bar to placement or finalization.)
F.4 should be rewritten to provide that complainants can appeal any complaint to the accrediting entity if the AA/AP does not satisfactorily resolve their complaint, within 30 days of written notice of resolution. If the complaint falls outside of the ambit of the Convention, IAA, regulations and other accreditation requirements, the accrediting entity may decline to review the complaint.
F.6 should be amended because annual receipt of AA/AP complaints is simply not sufficient to meet the accrediting entity’s “oversight” responsibility. Instead, complaints that are not appealed should be forwarded on a quarterly basis in a standard format to the accrediting entity.
As the Evan B. Donaldson Adoption Institute pointed out at the meeting, the accrediting entity’s complaint review Procedures do not dovetail with the regulatory requirements for AA/AP. The Procedures should be revised to include the following features:
An Ombudsman for reviewing and timely resolving complaints. The Ombudsman will review each complaint, collect all necessary information, try to satisfactorily resolve the complaint in a timely manner (not to exceed 45 days for regular complaints and 7 days for urgent complaints), and, if unsuccessful, forward the complaint to the appropriate person within the Accrediting Entity for review of the appeal. The Ombudsman would also be responsible for analyzing and identifying patterns of complaints involving specific agencies and persons, as well as types of practices and preparing an annual report to the State Department.
A procedure within the accrediting entity for review of an appeal in 30 days, with expedited appeals reviewed in 7 days.
Publication of information on the types and prevalence of complaints, with the rates and type of complaints for AA/AP provided in an accessible and comparative format that takes into account the number of adoption contracts signed and finalized adoptions. See procedure in 96.13 A above.
Education of the public about the complaint review process.
Immediate referral of substantiated complaints involving violations by an AA/AP of Convention, statutory and regulatory requirements to the State Department for enforcement action.
96.13 F.5 This provision should contain a mandatory time frame for investigation, response and action by the Accrediting entity and levels of escalation beyond that entity should such a pattern be perceived.
96.13 F.6 A summary report detailing all complaints should be submitted to the Accrediting Entity quarterly. Copies should be provided immediately by the Accrediting Entity to the appropriate enforcement and/or oversight function within the State Department as specified herein. Annual reporting permits a pattern of misconduct to continue unchecked for too long.
96.13 G.3 Financial Irregularities
There is no basis for failing to require budgets and adherence to budgets by for-profits. Both for-profits and non-profits go bankrupt. The normal reporting period for bankruptcies is ten (10) years.
All providers should be required to have an annual audit in accordance with Generally Accepted Accounting Principals. The audits should be published on the Department of State website.
96.13 H Comprehensive Service Delivery
96.13 H.4 A screening process for professional and ethical conduct cannot be effectively implemented without reference to a specific and agreed upon ethical standard. Unfortunately no such broadly accepted standard exists among practitioners. In fact, some trade associations have voted against enforcement of their own internal ethical codes. Therefore, we believe that regulatory and enforcement standards should be kept separate from ethical and professional standards of practice.
96.13 I Personnel Administration
The existence of a governing body or manual of personnel policies and procedures has not been demonstrated to improve outcomes for adoptees and their families. These provisions should be deleted. Whether an agency or person discriminates in employment is not relevant to the outcomes for children and families. Other government agencies have responsibility for these areas. Inclusion of irrelevant material in the accreditation reviews merely adds cost and delays services.
The maximum caseload (35) does not seem to have any stated basis. A minimum annual level of placements would eliminate hobbyists, who are unlikely to remain current or be able to support peak loads should be formulated.
96.13 J Personnel Qualifications
While state licensure is a necessity, neither an M.S.W. nor certification by the Academy of Certified Social Workers have a demonstrated correlation to improved outcomes for adoptees or their families. In truth, no course work or experience in adoption is necessary to become either an M.S.W. or certified. An M.A. in Counseling, M. Psy. Or other degree could be As effective. If an educational requirement is to be required, the requirement should be stated in terms of relevant course work. For example:
Social service personnel who work directly with families shall have completed 120 classroom hours of instruction from an accredited educational institution including instruction in the following areas:
early childhood development with a concentration in nutritional and environmental deficits
adoptive family relationships
adoption search and reunion
diagnosis and treatment of prenatal drug and alcohol exposure
child abuse and treatment
family bonding and attachment
family grief counseling
ethics in adoption
96.13 J.8 The ethical inquiry for Approved Persons or Agency staff should not be limited to their prior “adoption” practice, but should extend to all prior areas of practice.
96.13 L Records, Reports, and Information Held in Confidence
The IAA is clear on the issue of confidentiality. All records created in the country of origin and received by the Central Authority are governed by the law applying to immigration records. Records created in the United States are governed by the law of the state in which the record is created. Records held by the agency or approved person are governed by the law of the state in which the agency or approved person is legally domiciled. All records must be preserved for the benefit of the child whether confidential or not. The provisions of this subtitle 96.13 L cannot be fully evaluated without referring to the regulations under Part 98. We will submit additional comments when the Part 98 regulations become available.
96.13 L.3: Delete "shall be deemed part of the Convention Record and." The quoted language is contrary to the definition in Section 96.1(q). More important, it could have the unintended effect of denying adoptees and adoptive parents access to the agency adoption case file, because Section 401(b)(1) of the Act allows access only if a Convention Record "is maintained under the authority of the Immigration and Nationality Act." Such denial would be flatly contrary to the compromise embodied in Sections 401(b)(1) and (c), under which access to records that are not held by the federal government is governed "by applicable state law"; in the case of agency files that is the law of the state where the agency is located and the records are held. The House Committee Report H. Rep. 106-691), in discussing Section 401 of the Act, states that the Act "does not intend to affect the extent to which access is provided to adoption records pursuant to federal or state law."
96.13 L.4 Bullet point 3 should be rewritten as follows: “Disposition and preservation of client records as well as provisions for access, in the event of dissolution of the agency, loss of accreditation, or loss of approval; and”. Article 30 of the Hague Adoption Convention clearly provides for provisions concerning access. Note that the definition of “client” is required. See 96.1 above.
96.13 L.6: These sections distort Articles 16, 30 and 31 of the Convention, from which these sections purport to be derived. In order to implement the Convention and Section 401(c) of the Act, these sections should be rewritten as follows:
“L.6:Subject to the State laws governing the agency's or person's operation, the child or his or her representative shall have access to information in the custody of the agency or person regarding the child's origins, in particular information concerning the identity of his or her parents as well as medical history. “
96.13 L.7 Should be amended to read: “With regard for the State laws governing the person or agency’’s operation, the adoptive parents and/or the child or his or her representative(s) may be provided with access by the agency or person to information regarding the child’s origins under the control of such agency or person. Any records pertinent to the child which are maintained by the Federal government pursuant to the Immigration and Naturalization Act shall be subject to no new restrictions on access by the adoptive parents and/or the child or his or her representative(s). These provisions survive the majority of the child”
“Subject to paragraph L.6 above, personal data gathered or transmitted under the Hague Convention, particularly data concerning the adoptive parents and the child, shall be used only for the purposes for which they were gathered or transmitted.”
The proposed draft fails to conform to the IAA. This substitute language will satisfy the IAA and Convention. The change in the order of the paragraphs is needed to parallel the order of the provisions in the Convention, and to avoid confusion. Article 30 of the Convention requires the central authority to "ensure that the child or his or her representative has access to information" concerning the child's origin. This, together with Section 401© of the Act, requires the change from "may" to "shall." Section 401© of the Act deleted the Convention's reference to "appropriate guidance"; the revised language for the regulation follows the Act in this regard. "Person" has been added to "agency." Article 31 of the Convention, which imposes the restriction on use of personal data gathered or transmitted under the Convention, specifically exempts the preceding Article 30, which mandates the child's access to that data. Hence the exception at the beginning of the rewritten subsection 7, as well as the other revisions designed to parallel more closely the language of the Convention.
96.13 M.9: The first sentence should read, "The agency or person responsible for arranging the adoption shall make all practical efforts to obtain available medical and social history on the child." See recommended changes in 96.13 A.7. Inadequate medical information has been such a source of tragedy that the regulations must make clear that the provider has a non-delegable responsibility to obtain all medical information that is available by practical efforts. This may require using multiple sources. The inquiry should not be into the provider's control of the foreign agent, but into the extent and effectiveness of the agency's efforts.
96.13 O.4, first bullet: Add at the end, prior to the semicolon, "and not withdrawn prior to action by the court." This language is required by Article 4c(3) of the Convention. It is included in Section B(b)(3) of the draft Hague Intercountry Adoption Procedures. The Convention requirement may conflict with provisions of state law denying birth parents the right to withdraw their consent or limiting the time in which they may do so. If so, the Convention requirement governs, because of the supremacy clause of the U. S. Constitution (Article VI). The legislative history of the Convention makes clear that this provision of the Convention is intended to supersede any limitations on revocation imposed by domestic law. In the preliminary draft of the Convention, this provision read "The competent authorities of the State of origin have ensured that the consents have become irrevocable." In the final Convention, "have become irrevocable" was changed to "have not been withdrawn."
Additional Regulatory Provisions Omitted From the Draft:
( ) All applications received by the Secretary shall be published upon receipt on the Department’s internet website in Postscript Document Format. Any amendments or supplements to an application shall be similarly published. All such applications shall be published in searchable form for use by the public. Only the social security numbers of applicants shall be redacted.
( ) Each Accrediting Entity shall maintain and publicize a toll free telephone number for the receipt of complaints against adoption providers. Each Accrediting Entity shall preserve the originating number for each call, the nature of the complaint for each call, the stated identity of each caller, the identity of the subject of the complaint, and the date and time of each call.
( ) All applications received by the Secretary or an Accrediting Entity shall be processed on a first come first served basis.
( ) Each Accrediting Entity shall have a review panel consisting of an odd number of members not less than five in number nor more than eleven. All such members shall be citizens of the United States and shall have no prior or present financial interest in any provider of adoption services. For this purpose financial interest shall include but not be limited to employment, debt, contract or directorship. A majority of such members shall be international adopted persons or international adoptive parents. Such review panel shall make all final recommendations to the Secretary for the Accrediting Entity in regard to suspensions, debarments, accreditation or approval.
( ) Each client shall be notified by each provider of adoption services where complaints may be lodged with both the Accrediting Entity and the Secretary.
Procedures for the Adoption of U.S. Citizens by Non-U.S. Residents or Citizens Omitted From the Draft
At the minimum, the IAA and Convention require the following provisions be included in the regulations:
( ) No U.S. citizen nor U.S. resident shall be offered for adoption until an Accredited Agency or Approved Person has demonstrated to a court of competent jurisdiction by clear and convincing evidence that:
The birth parents or legal guardian have freely and knowingly consented to the child’s placement for adoption with persons who are not U.S. residents or U.S. citizens, or the parental rights of the birth parents have been legally terminated by a court of competent jurisdiction;
The child or the child’s independent court appointed legal counsel has freely and knowingly consented to placement of the child for adoption with persons who are not U.S. residents or U.S. citizens;
The child’s independent court appointed legal counsel has determined that the child’s placement for adoption with persons who are not U.S. residents or U.S. citizens is in the best interests of the child;
The prospective adoptive parents have provided a home study, completed to the standards of the state of the child’s residence for adoptions from state foster care, with a favorable recommendation;
The Secretary has provided an adequate and complete written plan for tracking and monitoring the placement until the child reaches the age of majority;
The prospective adoptive parents have consented in writing to the Secretary’s plan for tracking and monitoring the placement.
The prospective adoptive parents have consented to inform the child that, the child is a U.S. citizen and may claim a U.S. passport at any time;
The prospective parents have acknowledged that adoption of a U.S. citizen confers no rights upon the prospective parents to enter or reside in the U.S.;
The agency or person responsible for the placement prepared in writing and completely executed an individualized adoption recruitment plan for the child, including but not limited to attempted recruitment of extended family members and persons familiar with the child;
The total consideration received by all persons involved in the placement does not exceed the consideration due for a placement within the U.S.; and,
The placement can be reasonably expected to produce better outcomes for the child than any alternative placement within the U.S.
Eighty percent of all adoptive placements worldwide are in the United States. All estimates of the number of U.S. families seeking children vastly exceed the number of children under age 7 needing a placement. The Convention on the Rights of the Child expressly prohibits the placement of a child outside their home country unless no safe family foster or adoptive placement is available in the child’s home country. The Department of State has announced an inability to track and monitor placements outside the United States. Once children are removed from the United States, the Department of State has demonstrated an inability to obtain the return of those children, even from countries allied with the U.S. The only reason U.S. citizens are being adopted by non-relative persons outside the U.S. is the prices paid outside the U.S. exceed the prices paid within the U.S. The adoption industry’s vehement rejection of safeguards on adoptees emigrating from the U.S., and the industry’s assertions that such adoptions are too rare to regulate, indicates that the industry views the non-U.S. market as a future growth area for exploitation.
DRAFT STATEMENT OF WORK AND DRAFT CONVENTION ACCREDITATION AND APPROVAL PROCEDURES
General Comments
These two drafts reflect a complete misunderstanding of the Convention, the IAA and Congressional intent, or a desire to subvert them. The role of the Accrediting Entity or Entities is not to be a social worker or business advisor to adoption providers. The role of the Accrediting Entity is to be the law enforcement agency with jurisdiction over adoption providers providing Hague adoptions.
Duties of Accrediting Entities
Section (a)(5)(i), Protection of Confidential Information.
All after the first sentence should be deleted and replaced by, "All information concerning applicants except individual taxpayer identification numbers shall not be confidential. In the event, an applicant demonstrates by clear and convincing evidence that other information personal to an individual will subject that individual to an imminent unreasonable threat of serious bodily injury, then the Secretary may withhold only that information which proposes such threat. Any and all information furnished by an applicant, without exception, shall be available to the Secretary, the Accrediting Entity and appropriate law enforcement agencies."
There is no basis for preventing public access to information about adoption providers, especially if the information is relevant to accreditation or approval. Information such as the quality of services offered, costs and fees, personnel qualifications, finances, etc., are of public concern, especially to prospective adoptive parents, and should be available to them. No one has suggested that there are trade secrets in adoption.
Secretarial Oversight
Section (b)(4). This section should be deleted for the reasons stated above concerning Section (a)(5)(i) under "Duties."
Oversight of Compliance
The second sentence of this paragraph reads, "Evaluation of compliance shall consist of a review of written documentation followed by on-site verification once each four years." This sentence summarizes why these regulations are totally misconceived and must be rewritten, from beginning to end. This method of evaluation does not measure performance or results; it measures paperwork or "policies and procedures." It is almost totally useless in preventing abuses. Use of a four year review period instead of the statutory minimum three years for new applicants is inappropriate. In the initial comments of the American Adoption Congress, submitted April 6, 2001, in hard copy only, the defects of this approach were described, and an alternative was suggested. For convenience, we reprint the relevant section of those comments below: Since the primary purposes of the Act are to protect rights and prevent abuses, accreditation implementing the Act should focus on results, i.e.,services actually rendered to adoptive parents and prospective adoptive parents, not on processes and certainly not on paperwork. In particular, we suggest that the core procedures should incorporate the reports described in 96.13 A above and be as follows:
The provider seeking accreditation should provide a complete list of clients (i.e., adoptive parents and prospective adoption parents) with whom the provider has dealt in a recent time period. The Accrediting Entity should then question a random sample of these clients concerning the quality of services delivered by the provider. The provider would notify all such clients that they may be contacted by the Accrediting Entity and should speak freely and frankly (such notification should commence immediately to all existing and new clients); all information obtained by the Accrediting Entity would be held in confidence to be used solely for the purposes of accreditation. Deliberate omission of any clients required to be included would be grounds for denying accreditation.
The Accrediting Entity should examine all complaints received (including resolved complaints) and investigate them in whatever degree is appropriate.
The Accrediting Entity should examine all complaints concerning the provider received by the state agencies that license the provider and by administrative agencies authorized to receive consumer complaints concerning the provider. The Accrediting Entity should again investigate as appropriate.
Records of any pending or resolved lawsuits against the provider should also be reviewed.
As a condition of accreditation, providers should be required to waive any confidentiality requirements that were created or imposed in connection with any claim settlements.
Accreditation in other contexts (e.g., education, hospitals) is often a collegial exercise intended to improve performance generally. Accreditation to implement the Act and Convention, however, is a "safeguard to ensure that intercountry adoptions take place in the best interests of the child" and to protect rights and prevent abuses of clients. It must enforce minimum standards. Encouraging "best practices" may be generally desirable, but it is not a purpose of the Act or the Convention.
Paperwork exercises such as self-evaluation reports and exhaustive examinations of record-keeping should be avoided, except to the extent required by Sec. 203(b)(1)(D) of the Act. Such exercises burden providers without furthering the purposes of the Act or the Convention. Such exercises also discriminate against smaller providers, regardless of their quality. Quality is best determined by examining results.
The qualifications for the bulk of management and staff of the Accrediting Entity must be heavily weighted in favor of criminal investigative experience, forensic auditing and criminal prosecution. Under no circumstance can the employment of recent adoption provider personnel be permitted, nor can terminated employees of an Accrediting Entity be permitted to obtain employment from adoption providers in the two years following termination.
All submissions to an Accrediting Entity must be public record unredacted except for the social security numbers of individuals.
The proper relationship between the Secretary and an Accrediting Entity is a service contract not a cooperative agreement. There is no justification for the initial term of the contract to exceed the three years specified in the IAA. The contract with the Accrediting Entity should terminate if ten percent or more of agencies accredited or persons approved by the entity have substantiated violations of the Convention, the IAA, the Foreign Corrupt Practices Act or their application. The contract with the Accrediting Entity should terminate, if disruptions and dissolutions in placements by Accredited Agencies and Approved Persons evaluated favorably by the accrediting Entity exceed ten percent of placements by those same providers in any time period.
The current accreditation model epitomized by the Council on Accreditation (“COA”) has proven woefully ineffective. Of the eight states accredited by COA, four have confessed or have been found by the courts to have violated the rights of children in their care.
Conflicts of Interest
We believe that any organization bidding for an accreditation role must bear the burden of proving that they are free from conflicts of interest. It is impossible for adoptive families and adoptees to have confidence that proper standards will be consistently, fairly and rigorously enforced by an organization that receives financial consideration from a regulated agency or person.
Financial Disclosures
Prospective accrediting organizations should be subjected to a significantly higher level of due diligence than presently contemplated in the Draft Statement of Work. At a minimum, an applicant must provide the following mandatory disclosures, which should be available for public review:
(a Consolidated audited financial statements for each of the last three years; consolidated audited financial statements must include the auditor’s letter where such a letter exists. Any qualifications should be disclosed and satisfactorily justified in the submission of the applicant;
(b A detailed schedule of all material sources of income for a period of three years prior to the application date; and
(c Upon appointment, periodic consolidated audited financial statements and income schedules.
Claims of privacy or trade secret rights by a prospective or actual Accrediting Entity regarding its own financial information, except where expressly provided for in applicable Federal law, should be given no credence whatsoever. Such claims are insulting to any conceivable standard of prudent governance.
Conclusion
There have been repeated attempts to persuade the adoption community to regulate itself over the years. Nearly every adoption trade group has in place ethical standards which it does not exercise against its own members who violate those standards. As the by-product of this hypocrisy plays itself out at homes across the United States, some providers and their representatives have continued to show almost complete contempt for their customers and a flagrant disregard for the best interests of the children they purport to serve. We can only hope that this draft is merely the result of inexperience, lack of subject area expertise, and the overreaching of industry-dependent consultants. Perhaps the next draft will be more child and family centric.