December 8, 2003

### 

### Re: State/ AR-01/ 96 

###  Comments on Proposed Rules for Hague Convention on Intercountry Adoption

#  

# To: U.S. Department of State

CA/ OCS/ PRI

Adoption Regulations Docket Room

2201 C Street, NW.

Washington, DC 20520

**From: International Concerns for Children (ICC)**

Colorado Office: 911 Cypress Drive, Boulder, CO 80303

Massachusetts Office: 66 Lake Buel Road, Great Barrington MA 01230

**(ICC is a member organization of Joint Council on International
Children's Services)**

Contact information regarding comments: Deborah McCurdy, MSW, LICSW at
(413) 528 - 2749

# Electronically mailed to <adoptionregs@state.gov> 

> (Electronically mailed document is identical to the two hard copies on
> letterhead being sent by overnight courier service this week.)

# Comments that follow pertain to 22 CFR Part 96, Subpart C through Subpart F

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

General comments, unique perspective and relevant experience of
International Concerns for Children (to be followed by specific comments
and suggested rewording)

For the past 28 years, International Concerns for Children has published
the annual [Report on Intercountry Adoption]{.underline} as part of its
advocacy for children in need of homes overseas. Originally incorporated
as the International Committee of Concern for Children by a group of
adoptive families, this nonprofit has shortened its name but has
expanded its mission of educating fellow adoptive parents about
intercountry adoption programs and the agencies that operate them. Our
unique perspective arises from our long-term close association with both
agencies and adoptive families, which leads us to conclude that the vast
majority of placing agencies are run by dedicated, responsible, and
ethical individuals who (like all of us) are sometimes subject to human
error in negotiating the minefield of intercountry adoption with its
many unknowns. The annual [Report on Intercountry Adoption]{.underline}
has been produced with the benefit of feedback from adoptive families\--
as well as objective documentation such as fees, licenses and federal
determination letters \-- to establish which agencies (and which of
their overseas programs) qualify for inclusion in its directory as
ethical and legitimate providers of adoption services.

It distresses us greatly that adoption agencies are, as a group, being
demonized by disappointed adoptive parents, as a result of the serious
errors or offenses of a relatively small number. This is a tremendous
injustice, already being played out in the courts to everyone's
detriment, despite the fact that the vast majority of agencies are
reputable, dedicated nonprofits which can ill afford lawsuits or the
loss of insurance. In our litigious society, agencies are feeling
desperate about their problems with insurance, at the same time that
anti-agency sentiment is becoming organized and promoted by a small
percentage of angry adoptive parents and their advocates who seem to
have influenced their congressional representatives to favor dangerous
regulations regarding insurance, risk and liability. These
well-intentioned but dangerous provisions -- which threaten the very
existence of all agencies working overseas --are, ironically, being
promoted as measures which will help "the client". However, we
respectfully submit that, if they are retained in the regulations, they
are almost certain to destroy the many agencies whose employees are
selflessly dedicating their lives to helping adoptive parents and the
children they hope to adopt.

We appreciate so much the opportunity to submit comments. ICC would like
to go on record as supporting the proposed second release of the
regulations with an additional comment period.

# Specific comments and suggested rewording of problematic sections of proposed rules, Subpart C and Subpart F

**(Proposed additions are underlined, and proposed deletions are in
brackets)**

**Comments on 96.13 (a)**

Home study providers generally will become supervised providers, once
their clients select a placing agency, since their responsibilities will
then include anticipated post-placement services. It is very important,
logistically, that they be exempt to begin with, since clients usually
take some time, during the home study, to thoughtfully select a suitable
placing agency. ICC favors the following wording changes that Joint
Council also favors, which is wording that we originally proposed to
JCICS. This changed wording clarifies the sequence of events and allows
the currently exempt local service agency to later provide the customary
post-placement services.

The suggested change in the fourth sentence below, from "approval" to
"re-approval", allows for the customary first approval by the home study
agency and/or child study agency which is expected by federal and/or
state authorities (for example, CIS, as well as the receiving state's
Interstate Compact Administrator in cases where ICPC is applicable to
international placements.)

The DOS may possibly wish to bifurcate these proposed rules to allow
home study providers and child background study providers to be dealt
with separately, but the logistical issue (and the sequence of events)
may be the same or similar for both in any given case. The regulations'
later references to "approval" in this context can be changed to mirror
the change in the fourth sentence.

Suggested rewording of 96.13(a)

**(a) A social worker professional or organization that is performing a
home study...but is not [currently]{.underline} providing any other
adoption service in the case is an "exempted provider"...**

**(a) ( third sentence): \[If\] [­­­­­Once]{.underline} the agency or person
provides another adoption service in the case in addition to the home
study ...**

**(a) (fourth sentence) The home study or child background study
prepared by an exempted provider must be submitted to an accredited
agency or temporarily accredited agency ... for review and
[re]{.underline}-approval.**

**\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\***

**Comments on 96.33 (h)**

We believe that one of the greatest threats to agencies in the
regulations is the strict requirement in this subsection for \$1,000,000
per occurrence in professional liability insurance, at a time when many
agencies are having increasing difficulties with obtaining ANY coverage
and also are being told -- in 96.39(d)\-- that they can't ask clients to
sign a "blanket waiver of liability." We know that DOS does not intend
for good agencies to have to close their doors because of lawsuits (or
the danger thereof) and resulting uninsurability, so we ask that you
PLEASE make it possible in some way for all providers to get the
required insurance \-- and to clarify in the final regulations how this
will happen. WE ARE THINKING OF SOMETHING LIKE A HAGUE INSURANCE
COMMISSION that the Central Authority would set up at reasonable cost to
providers in good standing, whether they were accredited, approved, or
supervised providers. In addition, we hope that the DOS will help enable
insurance companies to offer adoptive parents insurance for their
adoptions, to cut down on the very present danger of unjustified
wrongful adoption suits if something goes terribly wrong (as it
sometimes does in any aspect of life, through no one's fault.)

Because agencies and persons would be very unlikely to be able obtain
coverage at all if they were expected to cover supervised providers, and
because specifying any specific dollar amount as a floor of insurance
(even \$200,000) would encourage lawsuits of that amount or greater, we
suggest the following change in the proposed regulation. (In addition to
the requested deletion of the latter section, we suggest adding the
underlined "good faith" modification to acknowledge the reality that
good agencies with excellent records are already losing insurance
through no fault of their own and may be making a vigorous, sustained
effort, for some time, to replace it.)

**Suggested rewording of 96.33(h)**

**(h)The agency or person [makes good faith efforts to
continuously]{.underline} maintain\[s\] insurance in amounts reasonably
related to its exposure to risk \[including the risks of providing
services through supervised providers, but in no case less than
\$1,000,000 per occurrence\]**

**\*\*\*\*\*\*\*\*\*\*\***

**Comments on 96.37 (d) through (g):**

We feel very positive about the rule in (d) that supervisors,
non-supervisory employees, and those who conduct home studies are
allowed to have professional degrees in social work "or a related human
services field". This is very good, as many agencies' most experienced
adoption professionals are not social workers. We very much hope that
the final regulations retain this flexibility.

On the other hand, 96.37 (f) and (g), have upset many agencies who
traditionally have used people with a bachelor's degree in human
services (and extensive experience in intercountry adoption) to conduct
home studies and to prepare child background studies. Why must these
experienced, qualified people be required to have a master's degree when
those described in (e) directly above (non-supervisors who apply "other
clinical skills and judgment") may have a bachelor's degree in any field
as long as they have experience? Since all these experienced adoption
workers are supervised and may simply have different functions (rather
than the different skills and judgment that the DOS description
suggests), they should ALL receive the benefit of equal treatment, in
our opinion, so that none of them have to lose their jobs -- sometimes
in a geographical area where those with a master's degree may be hard to
find. We respectfully submit that it is not sufficient that current
bachelor's degree holders should be grandfathered, although this is a
beginning. We would like to see bachelor's degree holders considered on
their merits, not the least of which is life experience. In addition, to
make up for any perceived deficit in their education, present and future
employees with a bachelor's degree could be required to obtain the
number of continuing education hours that their state requires for
master's degree holders. Otherwise there could be severe staffing
shortages.

**Suggested rewording of 96.37(f)(1) \-- and (g), which has
corresponding language:**

**...have a minimum of a \[master's\] [bachelor's]{.underline} degree
from an accredited program of social work education or a \[master's\]
[bachelor's degree (or higher degree)]{.underline} in a related human
service field, including, but not limited to...**

\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*

**Comment on 96. 38(b)(9)**

All those with a professional degree have had courses in child,
adolescent and adult development as part of their formal education, but
not necessarily as it relates specifically to adoption. We suggest the
following addition to make clear that it is adoption-related development
that needs to be addressed in the agency's initial employee training.
Anything more is too broad to cover adequately along with the eight
other subjects proposed for initial training

Suggested rewording of 96.38(b)(9)

**(9) Child, adolescent and adult development [of the adopted
person]{.underline} (or, as an alternative, [as it is affected by
adoption.)]{.underline}**

\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*

**Comments on 96.38 (c)** The proposed 20 hours of conferences,
seminars, and other programs annually is a problem because it may exceed
state requirements even for those with a master's degree in human
services. (In Massachusetts, for example, those mental health counselors
and social workers who are licensed at the highest level are only asked
to document 30 hours every two years.) Many small agencies depend
heavily on independent practitioners such as these to do home studies
and post-placement services on a per-case, as-needed basis. They might
lose these highly qualified contract workers with private practices if
the number of Continuing Education hours is perceived as excessive, and
small agencies might be unable, because of small caseloads, to hire more
regular employees (who would, unlike the contract workers, have to
comply or lose their regular employment.). Also, documented distance
learning should be an acceptable alternative.

**Suggested rewording of 96.38 (c)**

**The agency or person ensures that employees who provide adoption
related services that involve the application of clinical skills and
judgment ... also receive ... no less than [30 hours of training over a
2-year period]{.underline} \[20 hours of training each year\] ...
through participation in seminars, conferences, [documented distance
learning]{.underline} c[ourses]{.underline}, and similar programs.**

**\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\***

**Comments on 96.39(d)**

We are very worried about the prohibiting of a "blanket waiver" (which
is not defined and could possibly be interpreted to exclude a waiver of
specific known risks, about which clients are routinely educated by
their agencies.) Our suggested rewording below, arrived at in
collaboration with Joint Council, would be a very helpful proactive
approach, telling agencies what the CAN do to protect their clients and
themselves at the same time. Moreover, it seems right and fair to
educate the client and about, and ask the client to assume, risks of
intercountry adoption that are beyond the control of agencies. All
parenthood carries innumerable risks, and parents who give birth
recognize this when they say about an expected baby, "We just hope it is
healthy." They do not ordinarily sue the obstetrician if the child has
medical, neurological or developmental problems that were not predicted
(or predictable) before birth.. However, infertile adoptive parents may
lose this perspective and become litigious toward agencies because of
years of disappointment and anger. We respectfully suggest that
**agencies need DOS to help them protect them from such clients and
their attorneys, rather than helping clients and attorneys to make it
easier to sue agencies. (e.g. DOS might allow agencies to ask clients to
agree to binding arbitration, with a cap.)**

Suggested rewording of 96.39(d):

# 96.39(d) The agency or person \[does not\] [may]{.underline} require a client or prospective client to sign a \[blanket\] waiver of liability in connection with the provision of adoption services in Convention cases, [provided that it specifies, in clear language, various risks of intercountry adoption and asks the client to voluntarily assume these risks as a condition of receiving services.]{.underline}

\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*

**Comments on 96.45(b)(8) and (c) as well as 96.46 (c)**

We strongly urge you to either delete these three subsections, or to
delete 96.45(b) and reword both 96.45(c) and the corresponding 96.46(c),
for the following reasons. (Our proposed rewording of the latter two
follows our comments, if you choose to reword rather than delete them.)

1\) Placing agencies already have huge problems getting and maintaining
insurance, and at least one broker has said that insurance companies
would never insure an agency that was legally responsible for foreign
providers of adoption services. Covering US based supervised providers
(local service agencies and social workers) would probably not be any
easier. One agency director said, "Our liability insurance will not
cover individuals who are not employees of the agency".

2\) Coverage even for U.S. based supervised providers (even if it were
possible) would make insurance so costly that primary providers would
avoid using \"local service agencies\" to provide home studies, parent
preparation and post-placement, choosing to use only other accredited
agencies. This would almost certainly force the many small agencies that
do local service to close their doors and would result in the loss of
the thousands of adoptive homes that these agencies, collectively,
provide placing agencies with each year.

These local service agencies, ironically, are the ones that can still
easily get affordable insurance of their own (since they don\'t place
children and are almost never sued). This will 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\-- as one agency director
stated clearly that she would do. They therefore should be specifically
exempted from the need to have \"tort, contract, and other civil
liability to the prospective parents\" assumed for them by the
accredited agency as provided in 96.45(c)(1). Also, **the regulations of
96.45(c)(2) and 96.46(c)(2) \-- requiring all supervised providers\'
inclusion in a bond, escrow amount, or liability insurance which is
maintained by the accredited agency --should at least be changed to
specifically exclude licensed agencies who are not involved in any way
with the locating or placing of children. Even better, it should be
deleted, since the enormous cost would have to be passed on to clients,
resulting in fewer adoptive homes for children.**

3\) No provisions have been made in the rules for anything like an
insurance commission that would guarantee liability coverage to both
accredited agencies and supervised providers in good standing. It would
be wonderful if the government could create something like this, since
some agencies are repeatedly turned down for coverage even now, before
the risks increase.

>   

4\) As others have pointed out, the rules offer excellent standards and
complaint procedure, with disciplinary actions to punish violations and
put bad agencies out of business. So why shouldn't this in itself be
enough to make agencies "do a better job" of overseeing supervised
providers? (This was the stated intent of the DOS in placing legal
responsibility with accredited agencies.) If compensation of wronged
clients is also a goal, all agencies could contribute a few hundred
dollars each year to a fund for client protection administered by DOS as
the Central Authority.

>  

5\) In essence, these proposed rules pit agencies against other agencies
and against clients, and could destroy the mutual trust we seek to
build, and would endanger individual agencies and intercountry adoption
as a whole

We present alternative language below, which emphasizes clients'
**responsibility for the** **choices they make** (1) as to whether to
adopt despite acknowledged risks (2) whether to use a home study/post
placement provider **of their own selection**, **which is a separate
entity from the primary** **provider, and with which they will have a
separate contract**. The suggested rewording of 96.45(2)(d) addresses
the problem that primary and supervised agencies will have if they are
legally pitted against each other and lose their insurance as a result.
**We cannot emphasize too strongly that it is the clients that choose
each of their agencies, often without advice from either agency, and
that it is only the decision of the client that brings a local service
agency together with a placing agency. There is no inherent connection
between the two agencies. Moreover, either agency could have liability
problems if it refused to work with the client's choice** of networking
agency in any case where there is a favorable home study and each is a
licensed agency in good standing.

96.45(b)(8) \[Suggest deletion of this proposed rule to render it
consistent with the reworded or deleted rule 95.45(c) below, whether you
choose to reword or delete\]

## Suggested rewording of 96.45(c) and 96.46(c), if they are to be reworded and not deleted:

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 which the client has chosen to contract with separately for
> certain services.]{.underline}

(c )(2)(d) \[Suggest deleting all of the present (c)(2)(d)\] [and adding
the following in its place:]{.underline}

[(c)(2)(d)]{.underline} [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}**

> \*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*

**Comments on 96.48 (d):**

**ICC supports the wide variety of parent training options** (in-person
and distance learning) that the regulations offer. We have great
enthusiasm for outstanding standardized online courses such as those
created by Adoption Learning Partners, which already help small rural
agencies and geographically scattered clients immensely. Also, if at
least a part of training included such standardized courses, it would
help defend agencies against the allegation that they did not prepare
families thoroughly enough for the intercountry adoption experience.
**Please retain the wording**.

> \*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*

 **Comments on 96.49 (e)(1) through (5):**

Most of 96.49 is reasonable in specifying what medical and social
reports and observation reports on children must include, especially
since much of it allows for "reasonable efforts". However, we fear that
too much pressure for missing or unavailable details can make already
overburdened foreign orphanages, foreign agency representatives, and
overseas doctors feel harassed and criticized, to the point where they
may refuse to work with us. Section (e), we believe, asks more than can
be reasonably expected in many cases from a developing country, putting
everyone in a bind. We suggest the same wording here about **making
"reasonable efforts**" to obtain this information as is used in section
(d) and also in section (f) that follows immediately (which refer to
obtaining medical and social information respectively) and cut the
overseas child care providers and doctors some much needed slack. We
believe the omission in (e) was probably unintentional.

**Suggested rewording of 96.49 (e)**

**(e) If the agency or person provides medical information to the
prospective adoptive parents from an examination by a physician or from
an observation of the child by someone who is not a physician, \[the
information includes\] [the agency or person makes reasonable efforts to
obtain and include:]{.underline}**

(1) **through (5) currently follow here, but we respectfully suggest
    deleting the latter part of (3) (after the words "the identity of
    the individual") \[ delete whatever follows\] as it would be
    offensive to foreign child care providers that make observations on
    children to imply that they need training , which nearly all of them
    would not have not had access to, to make such observations. Also,
    can we not assume that all individuals, including physicians,
    universally make observations that are subjective to some degree? To
    claim that any observation is objective increases the liability of
    an agency and the reporting individual.**

End of ICC's comments. Thank you very much for considering our suggested
rewording.

We look forward to the hoped-for second release of proposed regulations.