April 20, 2006
Maura Harty:
Among my highest priorities as Assistant Secretary for Consular Affairs is to implement the Hague Convention on Intercountry Adoption for the United States . The Intercountry Adoption Act of 2000 provided the framework for operation of the Convention in the United States and gave the State Department the task of issuing regulations to implement the Convention. Publication of the regulations on accreditation and approval standards for adoption service providers in February 2006 was a major milestone toward final ratification. I am very pleased to have the opportunity to use this forum to answer your questions about the Convention and the accreditation and approval regulations. However, in addition to our discussion here, I want to encourage you to regularly check our web site at www.travel.state.gov for further information and updates on Convention implementation.
Thank you for your participation in today’s discussion.
Cyndi writes:
I’ve read Section 96.47(a) of the regulations and would like to know if an “approved person” can approve a home study?
Maura Harty:
Hi Cyndi. This is a good question to begin with because it shows how important it is to carefully read the regulations. While approved persons and accredited and temporarily accredited agencies are generally treated the same under the regulations, in this particular case, an approved person may not approve a Convention case home study for purposes of these regulations. Although accredited agencies, approved persons, exempted providers and supervised providers can all perform home studies, only accredited agencies can “approve” them as that term is used in the regulation. Please keep in mind that this is a new “approval” requirement mandated by the Intercountry Adoption Act (IAA), and is different from the current concept of “approval” of a home study that may be established under State law, though it does involve the accredited or temporarily accredited agency making a determination that, among other things, the study was performed in accordance with the Department of Homeland Security’s regulations found in 8 CFR 204.3(e), and any applicable state law.
Mary from North Carolina writes:
What are the differences between an accredited agency and an approved person?
Maura Harty:
The answer to your question can be found in the regulation’s section on definitions (96.2). First, look at the definitions for “agency” and for “person.” An agency is a private, nonprofit organization licensed to provide adoption services in at least one state. A person is an individual or a private for-profit entity providing adoption services. The key is that “agencies” are non-profit licensed organizations, and “persons” are either individuals or private for-profit entities providing adoption services.
Second, look at the definitions for accredited agency and approved person. An accredited agency is an agency that has been accredited by an accrediting entity, in accordance with the standards in subpart F of the regulations, to provide adoption services in the United States in cases subject to the Convention. An approved person is a person who has been approved, in accordance with the standards in subpart F of the regulations, by an accrediting entity to provide adoption services in the United States in cases subject to the Convention. The Convention differentiates between non-profit agencies and for-profit persons. The IAA and the final rules follow this distinction. Overall, persons are disfavored under the Convention. Specifically, under the Convention, any party country may declare that the adoption of its children may take place only if required Convention case functions are performed by accredited agencies (or public authorities) and not by approved persons.
Pat writes:
If the only adoption service that I perform is preparation of a home study, then do I need to have liability insurance?
Maura Harty:
This is a really good question, Pat. If you are not seeking accreditation or approval and you are acting as a supervised or exempted provider as defined in the regulations, then the standard on liability insurance requirements (Section 96.33(h)) does not apply to you. That said, I want to stress that this exemption does not affect or change whether you must be insured under applicable state law(s), nor am I in a position to evaluate whether such insurance would be appropriate in your personal circumstances.
Frank writes:
I would like to know whether the Hague Convention has been ratified by the U.S. in the meantime or whether ratification is imminent?
Maura Harty:
Frank, thanks for asking about the status of the Hague Adoption Convention. The United States signed the Convention on March 31, 1994, signaling its intent to proceed with efforts to ratify the Convention. In 2000, Congress passed and President Clinton signed the Intercountry Adoption Act of 2000 (the IAA), Public Law 106-279, the implementing legislation for the Convention. At about the same time, the Senate gave its advice and consent to the Convention, stipulating that the United States ratify the Convention only when it was able to carry out its Convention responsibilities in the manner prescribed by the IAA.
The Convention and the IAA require the Department, as the designated Central Authority, to make a number of regulatory and organizational changes for the United States to be able to carry out its responsibilities.
Publication of the final rule on the Accreditation and Approval of Agencies and Persons (22 CFR Part 96) in February 2006 marks a major milestone toward implementation of the Convention. We are working hard on other required steps that need to be completed. We believe that the United States will be able to ratify the Convention in 2007. The Convention enters into force for the United States approximately three months after ratification.
Mary writes:
Do agencies have to prepare the statistical reports required in 22 CFR 96.43 for 2005 if they plan to apply for accreditation in 2006?
Maura Harty:
Mary, the answer to your question is no. The statistical reports will not be required until the Convention enters into force for the United States . There is no need to retroactively prepare reports on 2005 cases. However, it is likely that your accrediting entity, in evaluating an application for accreditation or approval, will require applicants to show that they have the capacity and ability to prepare the necessary reports.
Laurie from Maryland writes:
If I, as an adopting parent, file my I-600A now, will the Hague Convention have any effect on my adoption case?
Maura Harty:
Laurie, I can understand your concern, and Congress, in passing the Intercountry Adoption Act of 2000, took this situation into account. Section 505(b) of the Act states that neither the Convention nor the IAA (and its implementing regulations by implication) shall apply if the application for advance processing of an orphan petition (I-600A) or petition to classify an orphan as an immediate relative (I-600) is filed before the date the Convention enters into force for the United States. The date of the Convention’s entry into force will be posted on our web site well in advance.
Kathy writes:
Can you please clarify the difference between an adoption agency and an organization that conducts only home studies?
Maura Harty:
The key is not the term used but rather what services are performed. An adoption agency can prepare home studies along with providing other adoption services. Likewise, an agency or an individual can choose to just prepare home studies and not provide any other adoption services.
If an agency, for-profit organization, or an individual social worker performs only home studies, it may qualify as an exempted provider. It qualifies for this exemption if it performs a home study on prospective adoptive parent(s), or a child background study, in the United States in connection with a Convention adoption, but is not currently providing and has not previously provided any other adoption services in the case, and the study is approved by an accredited agency or temporarily accredited agency in accordance with applicable regulations.
An agency that is preparing home studies or child background studies and performing any of the other six adoption services listed in the definition of adoption services in 96.2 is not eligible to be an exempted provider.
L.B. writes:
Can you explain whether the liability waivers referred to in Section 96.39(d) of the regulation apply to the laws of the state where the adoptive parent(s) reside or the laws of the state(s) where the home or satellite offices of the adoption service provider are located?
Maura Harty:
The standard set forth in Section 96.39(d) provides, in part, that the agency or person requires a client to sign a waiver of liability as part of the adoption service contract only where that waiver complies with applicable state law. The question of which state law is “applicable” for purposes of this standard may vary depending on the factual situation presented. Unfortunately, we are not in a position to advise you on the applicability of state laws in particular fact situations. Local counsel may be able to assist, taking into account the particular circumstances of your situation. We recognize that this issue may be of concern to adoption service providers and, in the future, in conjunction with accrediting entities, we may be able to develop general guidance to assist adoption service providers in identifying the applicable law.
Megan writes:
How will agencies or persons know when to apply for accreditation or approval and what will be required?
Maura Harty:
Megan, let me answer that question in two steps.
First, although publishing the accreditation and approval regulations was a major step forward, before adoption service providers can submit applications for accreditation, the State Department must sign agreements to designate one or more accrediting entities. Subpart B of the regulations discusses this process in greater detail. After the accrediting entities have been designated, the State Department will publicly announce several key dates, including:
- when adoption service providers may begin applying for accreditation;
- the deadline for submission of applications from providers who wish to complete the accreditation/approval process before the United States ratifies the Convention (this is the transitional application deadline or TAD);
- the date by which such agencies and persons must complete the accreditation or approval process in time to be accredited or approved at the time the Convention enters into force for the U.S. (the “deadline for initial accreditation or approval” or DIAA);
- the date on which the first round of accreditation and approval decisions will be announced (called the “uniform notification date); and
- the date on which adoption processing under the Convention will begin.
All these dates may not be announced at the same time but once established, will be posted on our website: travel.state.gov and announced in the Federal Register.
Second, you asked what will be required of an agency or person applying for accreditation or approval. That is a question that goes to the heart of the regulations. In very general terms, an applicant for approval or accreditation will have to demonstrate to the accrediting entity’s satisfaction that it is in substantial compliance with the professional standards laid out in Subpart F of the regulations. Those standards address the nine broad areas of licensing and corporate governance: financial and risk management; ethical practices and responsibilities; professional qualifications and training for employees; information disclosure, fee practices, and quality control policies and practices; responding to complaints and records and reports management, service planning and delivery, standards for incoming cases and standards for outgoing cases. We realize that is a lot of ground to cover, and to introduce prospective applicants to the accreditation and approval process and the standards, we prepared a general overview of the regulations titled “Hague Convention Accreditation and Approval – What Your Organization Needs to Know.” You can find it on the Children and Family page of the www.travel.state.gov website under Hague Implementation. While not a substitute for reading the regulation, we think it is a good starting point, and I would welcome your feedback on this publication.
Donna writes:
If I am a sole provider, what would I need to do to become fully accredited?
Maura Harty:
Donna, it sounds as if you are a one-person or individual adoption service provider. In that case, you are considered to be a “person” as defined in the regulations, and you would apply for approval, not accreditation. As discussed above, after the State Department signs agreement(s) with accrediting entities (AEs), adoption service providers – whether agencies or persons – will have an opportunity to submit applications for accreditation or approval as applicable.
Your designated AE will work with you and give you guidance on what you will need to gain approval. (Your other options may include operating as a supervised provider, or, if you qualify, as an exempted provider as previously discussed.) In the meantime, I suggest that you start by reading the overview to the regulations described in the answer to Megan’s question, then move on to the regulation itself -- 22 CFR Part 96, and focus in particular on subpart F – Standards for Convention Accreditation and Approval.
Lisa writes:
As a small adoption agency that does fewer than 50 intercountry adoptions in a year, is it mandatory for me to apply for temporary accreditation or may I apply directly for full accreditation?
Maura Harty:
Smaller adoption agencies, as long as they meet the definition of “agency” (a private, nonprofit organization licensed to provide adoption services in at least one state) are free to apply for either full accreditation or for temporary accreditation when the transitional application deadline (TAD) is announced. However, you may not apply for both temporary accreditation and full accreditation at the same time. Temporary accreditation is only good for two years. Keep in mind too that if your agency applies for temporary accreditation, it will need to demonstrate that it has a plan for obtaining full accreditation before its temporary accreditation expires.
Meghan writes:
Can you cite the specific Immigration and Nationality Act (INA) regulation that deals specifically with the immigration of children adopted from a Convention country as mentioned in Section 96.38(a)(2) of the regulations under “Training Requirements for Employees”?
Maura Harty:
Meghan, I appreciate this question – you’re clearly familiar with the current regulations on processing orphan visas found in 22 CFR Part 42 and the corresponding Department of Homeland Security (DHS) regulations at 8 CFR 204.3. The reason that you cannot find the specific cross-reference cited in the Convention accreditation and approval standard is because the new INA-based regulations for Hague cases have not yet been issued. DHS is preparing new Hague regulations applicable to the immigration of children adopted from a Convention country. Also, the Department is working on a similar new regulation to cover visa procedures for Hague cases. Taken together, the DHS rule and the Department’s rule will govern the new steps for completing incoming Hague cases, and accredited agencies and approved persons will be required to train their newly hired employees on these regulations. The Department’s rule will be an amendment to 22 CFR Part 42 and should be published in the Federal Register within the next several months. We will announce its publication on our www.travel.state.gov website.
Kathleen writes:
My agency performs only home studies and post placement visits after a child has already been adopted overseas and returned home to the United States . Will we need to be accredited?
Maura Harty:
Kathleen, this is a question that is of great interest to many adoption service providers so I am glad you asked. The regulations specify that an adoption service provider that provides one or more of the six “adoption services” identified in the Intercountry Adoption Act and the accreditation/approval regulations (see Section 3(3) of the IAA and section 96.2 of the regulations) in a Convention case will generally have to be accredited, temporarily accredited, or approved, or supervised. There are limited exceptions to this requirement – for example, although preparation of a home study is listed as one of the six adoption services, if that is the only service that your agency performs, then it may qualify as an exempted provider as discussed earlier. Keep in mind that the home studies prepared by exempted providers will need to be approved by an accredited or temporarily accredited agency.
In determining the answer to your question, it is also important to remember the distinction between post-adoption and post-placement services. If an adoption is finalized in the Hague Convention country of origin of the child, then reports submitted after the parents return with the adopted child are post-adoption reports, and are not “adoption services” as defined by the Intercountry Adoption Act and the regulations. If on the other hand, the child enters the United States before the final adoption takes place, then an agency or person conducting post-placement visits would be providing post-placement monitoring services for the prospective adoptive parents. Post-placement monitoring is an adoption service. Thus, the agency or person must be accredited, temporarily accredited, approved or supervised.
Tom writes:
How and when will the decision be made whether adoptions from Guatemala will be allowed under the Hague Convention?
Maura Harty:
Tom, with Guatemala being a major country of origin for U.S. citizens who are adopting, I know there is a lot of interest in this matter. I can tell you that the United States is in regular contact with Guatemala on the issue of intercountry adoption. We continue to encourage Guatemala to take the necessary steps to pass implementing legislation that is consistent with the Hague Convention.
When the Convention enters into force for the United States , all intercountry adoptions between the United States and Convention countries, as that term is defined in Section 96.2 of the regulations, must comply with the Convention, the Intercountry Adoption Act and applicable regulations. For adoptions between the United States and a Convention country, U.S. law will require that, before issuing an immigrant visa to the adopted child, the U.S. Department of State certify that the adoption was completed according to the Convention. The Convention requires that certain key adoption functions in the child’s country of origin be performed by that country’s Central Authority directly, by other public authorities, or by accredited or approved adoption service providers.
For purposes of international law, the Convention entered into force for Guatemala in March 2003. Guatemala has not fully implemented the Convention, however, and its adoption system does not currently assign Convention functions in the manner prescribed by the Convention. Agencies and persons that have programs in Guatemala , or are considering assisting in adoption cases involving Guatemala , should consider this information when making decisions about whether to seek accreditation or approval. Further information regarding intercountry adoptions in Guatemala is available on our website in the Adoption Country Specific Information.
Diane writes:
My agency does some intercountry adoptions and some domestic adoptions but not all of the adoptions involve Hague Convention countries, will I need to be accredited?
Maura Harty:
After the Convention comes into force for the United States, an agency will generally need to be either accredited, temporarily accredited, or act as a supervised provider whenever it provides adoption services in cases involving a child immigrating to the U.S. from a Hague country or emigrating from the United States to a Hague country. The fact that your agency also does non-Convention cases does not exempt it from this general requirement.
You will know in advance when the Convention will enter into force for the United States , but I encourage you to start thinking now about how your agency will want to work as an adoption service provider under the Convention, and to take the appropriate steps to accomplish that in advance of the Convention’s ratification.
Tara from Pennsylvania writes:
Who will be responsible for following the adoption cases of emigrating U.S. children who are adopted by a family in another Hague Convention country?
Maura Harty:
In The Intercountry Adoption Act of 2000, Congress directed the Department of State and the Department of Homeland Security to jointly establish a case registry of all adoptions involving both the immigration of adopted children into the United States and the emigration of adopted children from the United States . The case registry is designed to include all such adoption cases, even if the child is being adopted from a non-Convention country or emigrating to a non-Convention country. The case registry will become active when the Convention enters into force for the United States . You can read more about how the system will work in the information brochure “The Adoptions Tracking Service – Frequently Asked Questions” found our website www.travel.state.gov. Look under the “Children and Family” page for Hague Implementation information.
Pat writes:
What would the penalties be for violating any provision of the Intercountry Adoption Act governing accreditation and approval requirements?
Maura Harty:
Section 404 of the Intercountry Adoption Act provides for civil and, in some cases, criminal penalties for those agencies or persons who are not accredited, temporarily accredited, approved or act as a supervised provider when required to be.
Once a provider is accredited, temporarily accredited, or approved, an accrediting entity may take adverse action against the agency or person for its failure to substantially comply with the applicable standards set forth in the regulations. Adverse actions include, but are not limited to, suspension and cancellation accreditation or approval. The Department of State may also impose adverse actions.
Mary writes:
Who will enforce the regulations for those agencies or individuals who provide two of the six core services and are not accredited or approved?
Maura Harty:
To enforce the mandatory accreditation and approval requirements, the IAA establishes civil and criminal penalties. With limited exceptions as set forth in subpart C of the regulations, agencies or persons that offer, provide, or facilitate the provision of adoption services in the United States in connection with a Convention adoption without being accredited, temporarily accredited, approved, or supervised are subject to civil money penalties of up to $50,000 for the first violation and $100,000 for succeeding violations under section 404(a) of the IAA. Under section 404(c) of the IAA, a knowing or willful violation of a requirement to be accredited, temporarily accredited, approved, or to be supervised, carries a penalty of imprisonment for not more than five years or fines of up to $250,000, or both. Because these penalties involve civil fines and criminal sanctions, ultimately the Department of Justice (DOJ) would be the federal agency to initiate prosecutions of un-accredited agencies or un-approved persons in federal court. The Department of State may refer such cases to DOJ.
Thank you all for submitting your thoughtful questions to me. I know that this is a lot of information to grasp and should you have additional questions dealing with implementation of the Hague Convention on Adoptions, feel free to send an e-mail to AdoptionUSCA@state.gov. | 
