December 5, 2003

To: U.S. Department of State

> CA/ OCS/ PRI
>
> Adoption Regulations Docket Room
>
> SA-29
>
> 2201 C Street, NW
>
> Washington, D.C. 20520
>
> Electronically emailed to: <adoptionregs@state.gov>

Re: **State/ AR-01/ 98**

**Welcome House of Pearl S. Buck International Comments on 22 CFR**

**Parts 96 and 98**

**Hague Convention on Intercountry Adoption; Intercountry Adoption Act
of 2000; Accreditation of Agencies; Approval of Persons; Preservations
of Convention Records; Proposed Rules**

# [Welcome House History and Background]{.underline}

# 

# INTRODUCTION and HISTORY

In 1949, Pearl Buck established Welcome House to find adoptive families
for children of multi-ethnic parentage born in the United States who
were regarded as "unadoptable". Welcome House has since expanded
internationally and has helped over 7,000 orphaned and abandoned
children from Europe, Asia, and South America, as well as special needs
children in the United States, to find permanent homes with loving
families.

Welcome House was incorporated in 1949 and unincorporated in 1991 when
it merged with PSBI. Welcome House Adoption Program of Pearl S. Buck
International is licensed by the Commonwealth of Pennsylvania and the
states of Delaware, New Jersey and Virginia.

**Mission**

**The mission of Welcome House Adoption Program is to provide children
throughout the world with the opportunity to grow in a loving permanent
family. We continue the legacy of our founder, Pearl S. Buck, by
providing the highest standard of adoption services, ongoing support for
adopted children and their families, community education, advocacy and
humanitarian assistance.**

**Programs**

Welcome House currently offers the following program services.

**CHINA**

-   Welcome House has been working in China since 1992.

-   Welcome House works with the China Center for Adoption Affairs
    (CCAA) to facilitate adoptions from China and employs a contractor
    who lives in China as our agency representative.

**KOREA**

-   Welcome House has been placing children from Korea since 1961.
    Welcome House starting working with our current partner, Holt
    Children's Services, in the early 80s.

**PHILIPPINES**

-   Welcome House has been placing children from the Philippines since
    the early 80s.

-   In country, adoptions are facilitated by our PSBI Philippines office
    in partnership with the Philippines Intercountry Adoption Board..

**SWAN**

-   Welcome House started working with the state of Pennsylvania in 1994
    to find families for older children with special needs in the US
    foster care system.

**INDEPENDENT PROGRAMS**

-   As a full service adoption agency, Welcome House offers professional
    services, specifically home study and post placement services,
    directly to families who are interested in programs not offered
    directly by Welcome House.

**POST PLACEMENT SERVICES**

-   Over the past year WH has developed a diverse calendar of Post
    Placement Activities for WH families. They include support,
    recreational and educational programs as well as Search services
    (adoptee reunifications with birth families).

**[Welcome House of Pearl S. Buck International's Response to the Hague
Convention]{.underline}**

Welcome House embraces the ideals embodied in the Hague Convention on
Protection of Children and Co-operation in Respect of Intercountry
Adoption, including:

-   A child's right to grow up in a permanent family environment;

-   Sending and receiving countries and adoption service providers
    establishing and maintaining adoption practices that protect
    children and their families and that acknowledge the life-long
    impact of adoption;

-   Encouraging ongoing dialogue and cooperation between countries to
    ensure the continued viability of adoption as an option for children
    in need.

Welcome House believes that every child should remain with their birth
parents or should be adopted by a family within their country of birth
whenever possible. When those options are not readily available,
international adoption should be a viable option. Institutionalization
and foster care do not provide optimal conditions for the full emotional
and physical development of children.

**[Summary of Significant Concerns]{.underline}**

Most significantly, we are concerned by the **insurance provision in
96.33(h) and the risk and liability requirements in 96.39(d), 96.45 and
96.46**. Affordable insurance is currently extremely difficult for
international adoption agencies to obtain. The exorbitant costs continue
to escalate. Many agencies are not able to find a carrier willing to
provide coverage despite an absence of complaints. In addition, the
proposed regulations would impose strict liability clauses with which we
fear insurance companies will not comply.

Following is a summary of our main concerns regarding this issue:

**The one million dollar insurance provision per occurrence is
unwarranted and nearly impossible to satisfy.** The Intercountry
Adoption Act (IAA) does not state a minimum dollar amount for insurance
coverage; rather, it states that coverage must be "adequate". One
million dollars seems excessive when damages for a single occurrence
rarely reach that amount. Mandating such a high floor of coverage will
force many agencies out of business due to the current difficulty of
obtaining affordable insurance.

**The definition of blanket waivers is ill defined.** It is imperative
to educate prospective clients on the various risks associated with
intercountry adoption. This regulation would appear to substantially
alter the current practice of informed waiver consent, interfere with a
business practice that has been upheld in the courts, and may encourage
superfluous litigation. In addition, it prohibits adoption agencies from
protecting themselves from circumstances beyond their control.

**Regulations 96.45 and 96.46 require accredited agencies to be legally
responsible for the acts of their supervised providers.** This proposal
raises several concerns. It is often the prospective adoptive parents'
decision regarding the local service and placing agency they will be
using -- thus, this proposed change would impose a connected
relationship at the family's request, not the agency's. This regulation
would have a detrimental economic impact on small entities. Primary
providers would be reluctant to work with a supervised provider, in an
effort to avoid the liability requirements, which may force supervised
providers out of business. This requirement places an enormous financial
burden on agencies and seeks unreasonable insurance provisions.
Furthermore, this proposed structure promotes litigation and is an
excessive requirement.

Welcome House is also concerned that **Subpart K does not stipulate a
fundamental due process that adoption agencies have a right to expect,
which would include notices, standards of proof, hearings, an internal
review process, timeframes, etc.** Currently, the regulations assume
that adverse action is warranted because of deficiencies, and does not
provide for an agency to appeal an accrediting entity's decision on the
basis that it was unfounded or taken improperly. We would like to see
more detail presented in this regulation to ensure that agencies are
fairly represented.

Lastly, we are concerned by the provision in **96.37(f) and believe that
requiring the home study personnel to have a master's degree is
unnecessary limiting.** This provision would limit the qualified
applicant pool for such positions thereby restricting choices for
prospective adoptive parents and increasing costs. Moreover, there is
inequality in the provisions since a bachelor's degree would be
sufficient for non-supervisory employees, as described in 96.37(e), as
long as they also have prior experience.

**[Welcome House of Pearl S. Buck International would like to express
our appreciation for having the opportunity to provide comments on these
proposed regulations. If we can be of any assistance to the Department
please contact Leonette Boiarski, Program Director or Jane Cramer,
Assistant Program Director at (215) 249-0100.]{.underline}**

**[Comments and Recommendations on the Regulations]{.underline}**

Recommend the reissue of the proposed regulations.

Welcome House requests that, rather than issuing final regulations, the
Department reissue the proposed regulations following the December 15th
public comment period. While we are pleased to see more information
included in the regulations, we believe that additional data needs to be
presented and incorporated into the regulations before they are
finalized. This would allow a greater opportunity for open debate and
input from legislative and State regulatory sources. While Welcome House
supports the United States' accession to the Convention, we would rather
postpone the finalization in order to ensure that the regulations are
truly comprehensive.

**Subpart B -- Selection, Designation and Duties of Accrediting
Entities**

**96.5 -- Requirement that accrediting entity be a non-profit or public
entity.**

Recommend the following revision:

> \(a\) an organization **[or proposed organization]{.underline}**
> described section 501(c)(3) of the Internal Revenue Code of 1986...

Welcome House is concerned that the probable pool of entities willing to
serve as accrediting entities is currently so small as to approach a
monopoly or oligopoly. We fear that public entities do not have
sufficient standards or infrastructure to support such an undertaking.
State licensing bodies are often understaffed and under funded.
Currently, those responsible for licensing often have little experience
with international adoption and do not know how to analyze the practices
of an agency.

Adding the language of "or proposed organization" would help ensure that
non-profit organizations in formation could apply to become an
accrediting entity. The current language seems to imply that only
existing organizations could apply to be accredited. Welcome House
assumes that, in the future, accreditation will be open to other
organizations as well. Thus, by clarifying that other organizations
would have the opportunity to apply as accrediting bodies.

**Subpart F -- Standards for Convention Accreditation and Approval**

**96.33 (g)**

We are unclear of the meaning of an "independent professional assessment
of risks". If this implies the mandatory use of an independent risk
assessment firm, then we would like to voice the following concerns:

A professional assessment of risks does not have to be performed by an
independent firm to be completed properly. The risk assessment can be
done professionally by a combination of the agency's management,
insurance agent and/or financial and legal counsel(s). Requiring review
by an independent risk assessment firm would also cause substantial
financial hardship by significantly raising the overall costs of
accreditation.

Further, during this risk assessment the availability and cost of
insurance coverage must be considered. As mentioned previously, it is
very difficult to obtain affordable insurance. For example, the quote
for Director's and Officer's insurance in Illinois for an agency
performing fewer than 25 placements is over \$30,000 a year. In some
states, D&O insurance is impossible to obtain at any cost. This
challenge should not negatively impact the risk assessment nor should
the cost of the risk assessment place an added financial burden on the
organization. Due to the lack of clarity regarding the provision that
limits an agency's right to contract, we recommend deleting the last
clause referencing "blanket waiver" for purposes of "professional risk
assessment".

Recommend the following revision:

> \(g\) The agency or person ~~uses an independent~~ **conducts a**
> professional assessment of the risks it assumes**, and includes the
> availability of coverage, cost, and the requirements of (h) in this
> section,** as the basis for determining the type and amount of
> professional, general, directors' and officer's and other liability
> insurance to carry. The risk assessment includes an evaluation of the
> risks of using supervised providers as provided for in § 96.45 and §
> 96.46 and of providing adoption services to clients**.** who,
> consistent with § 96.39(d), will not ~~sign blanket waivers of
> liability.~~

.

**96.35 - Suitability of agencies and persons to provide adoption
services consistent with the Convention.**

**96.35(b)(4) and (5) and (6)**

The prescribed ten-year period for which agencies must provide
accrediting entities with any disciplinary actions, complaints and
investigations is excessively long.

Recommend that the time period be reduced to five years in all sections.

In addition, the "written complaints" mentioned in section (5) are not
clearly defined. We would ask the Department to delineate between
frivolous accusations and substantiated complaints so that neither the
agency nor the accrediting entity is overwhelmed by unnecessary
paperwork.

Recommend the following revision:

> \(5\) For the prior **[five]{.underline}**-year period, any
> **[substantiated]{.underline}** written complaint(s) against the
> agency or person ...

Furthermore, we are unclear of the definition of "malpractice
complaints" in paragraph (6) and how they differ from written complaints
noted in (5). If there is no difference, then we recommend "malpractice
complaints" be stricken from regulation (6) since it is adequately
provided for in the preceding section.

**96.39(d) Blanket Waivers of Liability**

This proposed rule prohibits the agency or person from requiring a
client or prospective client to sign a blanket waiver of liability. We
are unclear what the Department defines as a "blanket waiver" of
liability. Welcome House believes that it is imperative to educate the
client or prospective client on the various risks associated with
intercountry adoption, including but not limited to: unknown or
improperly diagnosed medical conditions, uncertainty with foreign
government operations and dangers of traveling abroad.

Currently, it is standard practice for agencies to advise their clients
that international adoption is not a risk-free endeavor. After
acknowledging the possible hurdles and uncertainties, many prospective
adoptive parents choose to proceed despite the known obstacles. However,
this regulation would appear to alter current practice substantially,
and to prohibit adoption agencies from protecting themselves in a
reasonable manner. To be able to survive as an organization, agencies
must be able to share the risk and to protect themselves contractually
from the threat of superfluous litigation by adoptive parent(s).
Agencies need to educate their clients about the inherent risks and have
the client decide whether or not they wish to proceed.

Recommend the following revision:

Current provision in 96.39(d) be eliminated and replaced with:

> \(d\) The agency or person **[may]{.underline}** require a client or
> prospective client to sign a waiver of liability in connection with
> the provision of adoption services in Convention cases, **provided
> that it specifies in clear language the multiple [risks of
> intercountry adoption and asks the client to voluntarily assume these
> risks as a condition of receiving services. ]{.underline}**

This modification will align the regulation with current practice and
encourage the identification and full disclosure of risks to prospective
adoptive parent(s).

Welcome House is concerned with sections **96.45(b)(8)** and **(c)** and
**96.46 (b)(9)** and **(c)** that require accredited agencies to be
legally responsible for the acts of their supervised providers. While we
understand the Department's intent, there are several problematic
consequences.

[Families Choice]{.underline}

Frequently prospective adoptive parents decide where they will go for a
home study. Often times, placement agencies are approached by families
who already have a completed home study in-hand. In these cases, the
placing agency investigates the home study provider, ensures that the
local agency is licensed, and enters into an agreement if they hadn't
done so previously. We make this point to emphasize that accredited
placing agencies and home study providers (supervised providers) are not
inherently connected except by the families they serve, *at the family's
decision*. We would like to make this point clear to correct the
misconception stated in Preamble V(c)(6) that the primary provider
chooses the supervised provider with whom to work.

**[Reducing Supervised Providers and Altering the Adoption
Community]{.underline}**

**Accredited agencies acting as the primary provider will choose
[not]{.underline} to work with supervised providers in order to avoid
the required legal responsibility. If accredited agencies no longer
contract with local service agencies to perform adoption services, many
supervised providers would be forced out of business. This would reduce
the home study provider options, especially in more rural areas of the
country, for prospective adoptive parents. In Preamble V (c) it states,
"The Department also believes that the primary provider requirement will
improve practice without unduly changing the adoption community's
current structure for providing adoption services." However, this
proposed section would have the reverse effect and would unduly change
the current structure of the adoption community by undermining the
network between placement agencies and local service providers.**

[Financial Responsibility/ Insurance]{.underline}

Placing agencies already face enormous difficulty obtaining and
maintaining insurance (see our comments on section 96.33(h) above). We
have heard repeatedly from insurance companies that they would not
insure an agency that has legal responsibility for personnel other than
their own employees.

Even if it were possible for an accredited agency to obtain insurance
coverage for supervised providers, the coverage would be so costly that
primary providers would avoid using supervised providers, choosing only
to work with other accredited agencies so as to avoid the economic
burden and risk. This goes back to the above argument of creating an
environment that would force small agencies performing local services to
close their doors.

Ironically, it is the local service agencies that can still obtain
affordable insurance since they do not place children and are almost
never charged in a lawsuit. This may no longer be true if they are
allowed \--as in 96.45(d) \--to be sued by any accredited agency with
legal responsibility for their actions.

**[Proposed Structure Promotes Litigation]{.underline}**

**This regulation would place an enormous financial burden on agencies.
Most agencies do not possess deep pockets; they are non-profit
corporations with inherently limited resources. Non-profit corporations
face enough of a challenge in training and promoting responsible
behavior, and protecting themselves from the negligence of their own
employees without asking them to assume responsibility for local service
providers in the U.S. as well as for third party independent contractors
in foreign countries.**

**Non-profit corporations deserve protection from liability. For this
reason, some states have enacted statutes that provide non-profits with
immunity from liability of its own negligence. For instance, the New
Jersey Charitable Immunity statute provides as follows:**

> **No nonprofit corporation, society or association organized
> exclusively for religious, charitable or educational purposes or its
> trustees, directors, officers, employees... shall ... be liable to
> respond in damages to any person who shall suffer damage from the
> negligence of any agent or servant of such corporation ... where such
> person is a beneficiary, to whatever degree, of the works of such
> nonprofit...(See e.g. N.J. 2A:53A-7).**

**Non-profit immunity statutes codify the public policy that ensures
that the dedicated staff of not for-profit corporations can accomplish
their charitable purpose free of fear from litigation due to negligence.
Forcing non-profit international adoption corporations to expressly
assume the liability, not only for their own employees, but for
supervised providers here and in foreign countries over which agencies
have no direct control runs counter to other non-profit policy and law
and imposes an unduly heavy burden.**

**[Foreign Supervision]{.underline}**

**The regulations would further require agencies to assume
responsibility for their foreign supervised providers. This is an
impractical task. Assumption of liability by primary provider agencies
is an ineffective means of accomplishing better** oversight.

The same circumstances that necessitate international adoption are the
factors that create uncertainty and risk in the process. For example,
birthmothers abandon children due to extreme poverty, lack of adequate
care and/or the ability to receive and provide care for a child. This
often occurs with some degree of sub-standard pre- and post-natal care
and possible undiagnosed genetic conditions. The term \"abandonment\"
alone dictates that often very little information may be known about a
child\'s medical history or genetic disposition. Orphanage workers are
usually not skilled, trained medical professionals, but instead
well-meaning volunteers or low-paid labor providing basic care only. In
many instances, adequate testing to determine accurate levels of
physical, development and/or emotional delays is not readily available
in third world countries, too cost-prohibitive for under-funded
orphanages, or is viewed as an unnecessary expense to waste on the
country\'s unwanted children.

American agencies cannot reasonably be expected to track down every
birthmother regarding genetic predispositions, visit every orphanage,
and attend every doctor's visit. American agencies\' chances of
successfully policing their foreign counterparts are extraordinarily
difficult to accomplish. Imposing this additional liability on agencies
will not assist with agencies' policing efforts nor help to enforce
accountability.

American agencies can, however, comply with the other suggestions set
forth in section 96.46. Specifically, they can perform a reasonable
investigation of foreign contacts, ensure they understand and comply
with the policies of the Hague Convention and the general standards of
reasonable care and ethical practice. Agencies can further ask foreign
contacts to sign contracts whereby they certify to comply with the

Hague Convention policies and continue to monitor and train their
employees concerning acceptable procedure and practice. Disregarding the
liability provisions, the remaining subsections of 96.46 propose a
framework for improved supervision and accountability that is
acceptable.

[Excessive Provisions]{.underline}

With the exception of the risk and liability sections, the proposed
rules offer excellent standards, a more rigorous accountability
structure, a complaint registry, and disciplinary actions. It would seem
that these thorough provisions should be sufficient to monitor the
adoption agencies and oversee supervised providers. To unduly alter the
adoption community landscape, undermine the network of providers, and
put the future viability of local service providers in question seems to
be contrary to the Department's stated goal of facilitating
international adoption in accordance with the Hague guidelines.

We believe that instead of forcing strict legal liability this proposed
rule should focus on exercising due care and a good faith effort to
ensure supervised providers are in compliance with the Convention.

Recommend the following revision:

> Proposed rules 96.45(b)(8) and (c)(1) and (c)(2) and 96.46 (b)(9) and
> (c)(1) and (c)(2) be struck from the regulations.
>
> If the above rules are not stricken, then we recommended the following
> word revisions:
>
> 96.45(c) The agency or person, when acting as the primary provider and
> using supervised providers in the United States to provide adoption
> services **does the ~~following in relation to risk management ~~**
>
> (c)(1) **~~Assumes~~ [Shall not be deemed to have assumed
> ]{.underline}**tort, contract and other civil liability to the
> prospective adoptive parent(s) **or adoptive [parent(s)
> ]{.underline}**for the supervised provider's provision of the
> contracted adoption services and its compliance with the standards in
> this subpart F; and
>
> (c)(2) **~~Maintains~~ [Need not maintain ]{.underline}**a bond,
> escrow account or liability insurance sufficient to cover the risks of
> liability arising from its work with supervised providers, **so long
> as it has a waiver of liability, signed by [clients or prospective
> clients, that clarifies that the supervised provider is a separate
> entity with which the client has chosen to contract with separately
> for certain services. ]{.underline}**
>
> (c)(2)(d) Reword the current paragraph to read:
>
> [(c)(2)(d) **In view of the difficulties many agencies have had in the
> past with obtaining insurance even for their own corporation, staff
> and board, primary providers and supervised providers - who are
> typically brought together in the first instance by a voluntary choice
> of prospective adoptive parents more than by their own decision - may
> mutually agree not to pursue any legal claims against each other in
> connection with their respective provision of adoption services.
> **]{.underline}
>
> [96.46 (b)(9) and (c)(1) and (c)(2) Suggest changes that correspond to
> the parallel changes in 96.45]{.underline}

**96.49 - Provision of medical and social information in incoming
cases.**

**96.49 (e)(3) - (5):**

While most provisions of 96.49 are reasonable in specifying what medical
reports and observation reports on children should include, it also
needs to be acknowledged that due to limited medical technology and
limited access to information and basic historical data on a child,
available medical information is not always thorough or accurate in
foreign countries. These three sections request more information than
can be reasonably expected in many cases, putting agencies, their
representatives and overseas medical practitioners in a difficult
situation.

The Central Authority in some countries requires standardized health and
social records in adoption cases. In these cases physicians approved by
the Convention country are employed by the Convention country to do an
evaluation of the child. This evaluation is usually a summary based on
the physician's review of the full medical records and a physical exam.
Primary providers have no control over the selection and qualifications
of the physician, the items included in the medical summary or the
quality of the information provided. The Central Authority, not the
primary providers, should be held liable for the accuracy of the
information they provide.

Also, many countries legally limit access to personal information on
children in order to protect the child's right to privacy. This
protection makes it difficult or impossible, in some countries, to have
access to the child's history, religious, ethnic and full medical
information.

Recommend the following revisions:

\(d\) The agency or person itself uses reasonable efforts, or requires
its supervised provider or agent in the child's country of origin who is
responsible for obtaining medical information about the child on behalf
of the agency or person to use reasonable efforts **within the confines
of the convention country's laws and procedures**, to obtain available
information, including in particular:

\(e\) If the agency or person provides medical information, **separate
from the information provided by the convention country**, to the
prospective adoptive parent(s) from an examination by a physician or
from an observation of the child by someone who is not a physician, the
information **should** includes, **as reasonable efforts allow:**

\(f\) The agency or person itself uses reasonable efforts, or requires
its supervised provider or agent in the child's country of origin who is
responsible for obtaining social information about the child on behalf
of the agency or person to use reasonable efforts **within the confines
of the convention country's laws and procedures**, to obtain available
information, including in particular:

> \(k\) The agency or person does not withdraw a referral until the
> prospective adoptive parent(s) have had at least a week (unless
> extenuating circumstances involving the child's best interest require
> a more expedited decision) to consider the needs of the child and
> their ability to meet those needs, and to obtain physician review of
> medical information and other descriptive information including
> videotapes of the child, **if available.**

**96.54 -- Placement standards in outgoing cases.**

**96.54(b)**

Recommend the following revision:

> \(b\) The agency or person demonstrates to the satisfaction of the
> State court with jurisdiction over the adoption that sufficient
> reasonable efforts to find a timely **and qualified** adoptive
> placement for the child in the United States were made, or that making
> such reasonable efforts was not in the best interest of the child.

It is crucial that this regulation emphasize the need for "qualified"
adoptive parent(s), not just a timely placement.

**Subpart K - Adverse Action by the Accrediting Entity**

Welcome House is concerned that Subpart K does not stipulate a
fundamental due process for agencies, which would include notices,
standards of proof, hearings and an internal review process, etc. While
the regulations go to great length to protect the rights of the adoptive
parents, as they should, and to establish a complaint registry and
accountability standards, there is not a comparable medium for agencies.

We would like to see the following instituted in the regulations:

Language as outlined in the IAA to be incorporated into regulation 96.76

A detailed fundamental due process for agencies including notices,
standards of proof, hearings, an internal review process, and
information on how cases are handled during an appeal process

Additional detail about the transfer of Convention cases

**96.76 -- Procedures governing adverse action by the accrediting
entity**

In Section 204(c)(1) of the International Adoption Act it states in
paragraph (A) that the Secretary can only temporarily or permanently
debar an agency from accreditation if "there is substantial evidence
that the agency or person is out of compliance with applicable
requirements". In paragraph (B) the Act states that there has also "been
a pattern of serious, willful, or grossly negligent failures to comply
or other aggravating circumstances indicated that continued
accreditation or approval would not be in the best interests of the
children or family concerned". We feel that this wording clarifies the
circumstances and criteria used to enforce suspension or revocation of
accreditation and should apply to accrediting entities as well. Although
it is stated in regulation 96.85(b) we would like it repeated in 96.76.

Recommend that the above wording from the IAA be incorporated into
Subpart K to ensure the actions of the accrediting entities comply with
fundamental due process.

In addition, a limitation should be included in Section 96.76(b) of the
Regulations to ensure that only a child-endangering emergency would
permit action to be taken by an accrediting entity without notice. For
example, the Regulation might provide that action can be taken without
notice only in the case of \"clear and convincing evidence of imminent
danger to a child.\"

Recommend the following revision:

> \(b\) (2nd Sentence) If the accrediting entity took adverse action but
> did not communicate with the accredited agency or approved person
> about the deficiency in advance (such **as a case of clear and
> convincing evidence of imminent danger [to a child]{.underline}**),
> the accrediting entity must allow the accredited agency or approved
> person an opportunity after the notice is issued to provide
> information refuting that adverse action was warranted.

[Transfer of Convention Cases]{.underline}

Regulation **96.77(b)** distributes too much power to the accrediting
entity. The accrediting entity is empowered to suspend an accredited
agency without notice (96.76(b)) and order that its files and cases be
transferred to another agency. In addition to the necessity of a
detailed appeal process, there also needs to be clear definitions of how
an accrediting entity would transfer Convention cases to another agency.
We recommend that the procedure be clearly defined to avoid accusations
of favoritism by the accrediting entity and to ensure that the
prospective adoptive parents have a voice in the transfer process.

[Appeal Process]{.underline}

**96.78(a)** states, "If the accrediting entity takes adverse action
against an agency or person, the agency or person must petition the
accrediting entity to terminate the adverse action, [on the grounds that
the deficiencies necessitating the adverse action have been
corrected]{.underline}, before it can seek judicial review" (emphasis
added). By stipulating that the only way to petition an adverse action
is on the grounds that the deficiencies have been fixed assumes guilt.
The termination of the adverse action will only occur if the accrediting
entity is \"satisfied\" that there have been corrections. There is no
account of a standard of proof, definition of evidence to support, or
mechanism to petition the adverse action if it was unfounded or taken
improperly. Additionally, there is no time frame prescribed for an
agency to be able to seek judicial review when awaiting termination of
an adverse action. Agencies need the opportunity to petition the
accrediting entity to terminate the adverse action before it is
finalized. Welcome House requests that due process for agencies be added
to the regulations, or at the very least, a mandated internal review
process included in the Department's Memorandum of Agreement with the
designated accrediting entities.

**Subpart L -- Oversight of Accredited Agencies and Approved Persons by
the Secretary**

Regulation **96.82(b),** states that "when informed by an accrediting
entity that it has taken an adverse action that impacts an agency's or
person's accreditation or approval status, the Secretary will take
appropriate steps to inform the Permanent Bureau of the Hague Conference
on Private International Law". Once more, the issue of adverse action
without notice is problematic. This provision allows the Secretary to
inform the permanent Bureau of the Hague Conference on Private
International Law when the party in question has not had an opportunity
to appeal the decision from the accrediting entity. There must be a
detailed appeal process with notice and hearing in place to ensure the
rights of the adoption agencies are protected.

Welcome House suggests that the Department create a review committee
representing all sides of adoption -- adoption professionals, parents,
adoptees -- to provide advisory services to accrediting agencies.

**96.85 Temporary and permanent debarment by the Secretary**

Welcome House agrees with this provision and is pleased to see that it
properly contains language that defines when the Secretary is to take
action for debarment.

**Subpart M -- Dissemination and Reporting of Information by Accrediting
Entities**

**96.96 and 96.98**

The eligibility requirements and timeframe listed in these sections
provide an opportunity for smaller agencies to reach compliance with the
full accreditation requirements. We are pleased that the Department is
making this distinction for smaller agencies.

**96.103(b)**

This regulation states "the accrediting entity may determine, at its
discretion, that it must conduct a site visit to investigate a complaint
or other information... the accrediting entity [may assess additional
fees]{.underline} for actual costs incurred for travel and maintenance
of evaluators and for any additional administrative costs to the
accrediting entity". This provision is arbitrary in that the accrediting
entity, at its discretion, can visit the agency at the agency's expense.
Some parameters for "extraordinary cases" need to be clearly defined to
protect the agencies from unnecessary fees.

**[General Comments on the Preamble]{.underline}**

In the Intercountry Adoption Act of 2000 (the IAA) at Sec. 2(a)(2),
Congress recognizes a "need for the uniform interpretation and
implementation of the Convention in the United States [and
abroad]{.underline}" (emphasis added).

The proposed rules to the IAA understandably focus almost entirely on
implementation in the U.S. However, Welcome House would like to take
this opportunity to address how the Department, as the Central
Authority, will advocate for uniform interpretation and implementation
in other countries.

There is significant concern among the international adoption community
that the manner in which the Convention has been implemented, or
attempted, in many countries undermines the goal of transparency in
adoption. It is WELCOME HOUSE OF PSBI' sincere hope that the Department
will accept its mandate and assist those abroad, as well as regulate in
the U.S. The IAA's three core purposes in Sec. 2(b) are (1) U.S.
implementation of the Convention; (2) protection of the rights of
children, birth families and adoptive parents while ensuring that
adoptions are in the children's best interests; and (3) improving the
ability of the Federal Government to assist U.S. citizens seeking to
adopt children from abroad. To fulfill this last purpose, we believe it
would be extremely beneficial for the U.S. to assume a leadership role
as part of its own implementation and serve as a resource and advocate
for international adoption in other countries.

In its resource and advocacy role, the Department should actively
investigate and document any alleged adoption abuses and use the
Convention as a mechanism for resolving disputes, particularly those
between two party countries. Unfounded accusations and rumors of child
trafficking have undermined confidence in intercountry adoption. The
U.S. should initiate a neutral fact-finding tribunal to investigate
adoption abuses between party states and to provide resources for
countries seeking to implement or improve implementation in their own
countries.

Hopefully, the proposed regulations recognize one of the most critical
considerations in child welfare decisions is achieving permanency as
expeditiously and inexpensively as possible. The U.S. must guard that
its own system does not become a bloated bureaucracy that slows, rather
than improves the process of international adoption.