> Ginger Healy MSW, LCSW
>
> Adoption Social Worker
>
> 2179 West Cedar Hills Drive
>
> Cedar City, Utah 84720
>
> I believe that every child should remain with their birth parents
> whenever possible or should be adopted by a family within their
> country of birth. When those options are not readily available,
> international adoption should be a viable option. Institutions and
> foster care \"do not provide optimal conditions for the full emotional
> and physical development of children.
>
> First and foremost: I respectfully request that these regulations come
> out again in DRAFT form and not as final regulations. There is obvious
> evidence that the Department of State, agencies and state licensing
> offices need more time to prepare for these regulations, as well as
> having more time to write them in a manner that is reasonable and
> practical. Please \--bring out these comments in DRAFT form.
>
> I request the following subjects to be clarified in the regulations:
>
> 1\. Why isn\'t the Department of State going to be part of an
> enforcement entity regarding the postplacement phase of the adoption?
> In other words, we understand from the Public Meeting on this issue,
> that the DOS is not going to make sure that family\'s who agree to
> provide postplacements will indeed have to provide them or be held
> accountable for not doing so; We (CHI) work in country\'s that require
> our family\'s provide follow-up reports and if we do not fulfill that
> requirement, our license or agreement to work there is in jeopardy. We
> request assistance from the DOS regarding ensuring that families do
> follow those requirements. If it is not included in the regulations,
> we have no recourse. .
>
> 2\. I understand that the regulations are to regulate agencies who
> work in Hague convention countries. If this is the premise, then we
> request that all complaints related to an adoption agency service only
> be entertained by the DOS (and accrediting entities) only **IF** the
> complaint is in regard to a convention adoption, and for no other
> adoption situation. In addition, we request the same consistency in
> regard to the question of who is a small agency. An agency should only
> be counting the convention adoptions, not all adoptions they service
> to find out if they qualify as a small or large agency. We request
> consistency in these matters.
>
> 3\. Please clarify and define what a \"complaint\" is in regard to
> complaints against an adoption agency from a family.
>
> Subpart D - Application Procedures for Accreditation and Approval
>
> 96.21 Choosing an Accrediting Entity
>
> Please clarify what is meant by \"jurisdiction over its application\"
> in (a) and (b) of this section

If this implies that accrediting entities will have a geographical
region that they can cover and agencies may only apply to a specific
accrediting entity, then we are opposed to such a definition. Such a
provision would prohibit an agency\'s choices in applying for
accreditation thereby making the field unnecessarily restrictive. We
propose that agencies be allowed to apply to any accrediting entity
available and that all references to the phrase \"jurisdiction over its
application\" be deleted from 96.21. This is also extremely important
considering some agencies are licensed in more than one state. If they
are accredited in one state, will they be considered accredited for the
entire agency, even though the other offices are in other states. If you
don\'t make this clear, an agency licensed in more than one state may be
burdened to be licensed more than one time. Please clarify and simplify
the process.

96.33 Budget, audit, insurance and risk assessment requirements

96.33 (e)

In section (e) the regulations require cash reserves or other financial
resources to meet its operating expenses for three months. There are
cyclical periods of down time in international adoption, especially
during the summer months when many foreign countries close for holidays
and do not process cases. There are also unforeseen changes in foreign
countries, which may result in temporary loss of budgeted income. In
addition, non-profits are reliant on the economy. Since 9/11, we have
seen a decrease in donations and services requested. Reserves tend to go
down during these periods and are recouped later. A non-profit should
not be required to have a certain amount of cash reserve in the bank in
the same manner that a for-profit business does. In addition, what is
the definition of operating expenses? Does that include overseas support
of orphanages monthly? Please be more specific as to what would be
included in this 3 month requirement.

1 Three month\'s worth of [cash reserves]{.underline} is too much for
small agencies that are not funded through endowments, and would cause
intermittent non-compliance with this regulation.

2 Secondly, some of the larger agencies who provide state services are
frequently not

> paid for those services on a regular basis due to their State\'s
> budgetary constraints. These agencies could potentially lose their
> accreditation through no fault of their own, as the money due to them
> has not been paid. *(i.e.,* in 2003 some Illinois agencies providing
> private services had to wait six months or more for payment from the
> State.)

3 Third, requiring cash reserves of this amount would cause an undue
hardship on newly established organizations, thus making it difficult
for new or potentially new child welfare agencies to work in Hague
countries.

Standard business practice for non-profits when dissolving an
organization is to sell the organization\'s assets for distribution to
creditors. If the statute\'s intent was to protect the organization\'s
assets for reimbursing prospective adoptive parents for services not
provided, then general assets could be substituted for cash reserves.

Recommend the following revision:

> \(e\) The agency\'s or person\'s balance sheets show that it operates
> on a sound financial basis and generally maintains, [on
> average,]{.underline} sufficient ~~cash reserves~~
> [assets]{.underline} or other financial resources to meet its
> operating expense for three months, taking into account its projected
> volume of cases. [The agency or person must develop a Risk Management
> Contingency Plan for the possibility of reorganization or dissolution
> of the organization, and include provisions for an organized closure
> and reimbursement to clients of monies paid for services not yet
> rendered.]{.underline}

96.33 (g)

I would like a clarification on 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 an undo
financial hardship for small agencies by significantly raising the
overall costs of accreditation.

Further, during this risk assessment the availability and cost of
insurance coverage must be part of the consideration. For example, the
quote for Director\'s and Officer\'s insurance in Illinois for an agency
doing under 25 placements is over \$30,000 a year. In many states D & O
insurance is impossible to obtain or cost prohibitive.

Finally, as noted in our comments on section § 96.39(d), due to the
confusion regarding terminology surrounding the provision which 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.~~

96.33(h) \[Section to be revised slightly to include - agencies don\'t
have control over these factors (i.e. insurance availability); Clause
for non-compliance grace period and that agencies \"make reasonable
efforts to maintain insurance and can demonstrate such

efforts\"; Government needs to assist with insurance - several options
including re-

insurance, insurance for families, federal underwriting, etc.; and cite
charitable immunity clauses in States.\]

Our agency\'s experience with insurance is that we currently pay
\$20,000 a year for \$1,000,000 coverage. This coverage will go up 15%
this next year, guaranteed, and that doesn\'t include the added
liability the Department wants us to add if these current regulations
come into play. We are not now covered for overseas persons involved
with the adoption process.

The provisions that cover risk and liability issues directly counter
certain goals of not only the Hague Convention but of the regulations
themselves. While initially the adoption agencies may pay the price by
increased costs or going out of business, ultimately, the children of
foreign nations and adoptive parents will suffer from the high costs and
responsibilities heaped on agencies, and there will likely be a chilling
effect on international adoption to the benefit of no one.

Considering the current difficulties in obtaining insurance coverage,
carriers will certainly resist providing at least \$1,000,000 in damages
for a single occurrence when adoption expenses rarely rise above
\$30,000 and much of these expenses are now setoff against government
tax credits and employer contribution benefits. Such a high floor of
insurance certainly invites litigation, and is unfair to agencies
because of unknown medical and developmental problems and the inherent
risks in adopting institutionalized orphans through intercountry
adoption. We urge the Department to reconsider this stringent
requirement which will prove exceedingly difficult for agencies to
comply with and will force many agencies or persons to not become
accredited resulting in fewer children being placed.

The IAA does not specify a dollar amount for insurance and simply states
in Sec.

203(b )(1 )(E) that \"The agency agrees to have in force adequate
liability insurance for professional negligence and any other insurance
that the Secretary considers appropriate\".

Recommend the following revision:

> \(h\) The agency or person maintains insurance in amounts reasonably
> related to its exposure to risk.

I also strongly recommend that the Department provide direct assistance
with regards to insurance for agencies and persons to satisfy the
accreditation requirements. One suggestion is to form a Hague Insurance
Commission and have the government underwrite the insurance and
establish maximum limits on how much money adoptive families can obtain
in liability suits. The commission would also need to address the number
of occurrences covered in a policy year. We recommend three (3) as the
limit since that appears to be a typical ceiling on occurrences.

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 too long and will cause an unnecessary burden to the
agency.

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.

I suggest the following revision:

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

Furthermore, I am 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 struck from regulation (6) since it is
adequately provided for in the preceding section.

96.37 - Education and experience requirements for social service
personnel.

96.37(d) Credentials of Supervisors

The flexibility of this proposed regulation in permitting supervisors to
have professional degrees in social work \"or a related human services
field\" is beneficial to adoption agencies. This allows flexibility in
hiring professionals from a broad educational background.

96.37(f) Master\'s Degree Requirement

Requiring the home study personnel to have a Master\'s in Social Work
will have a negative effect on the entire adoption industry. We have
highlighted three main reasons why this requirement will have a negative
effect.

[Scarcity of Qualified personnel]{.underline}

If enacted as proposed, this Regulation will severely restrict the
availability of qualified home study personnel. In many geographical
areas, especially in the more rural parts of the country, there are few
master\'s degree recipients available, and those that are do not

typically have experience in international adoptions. .

Many master\'s programs do not specifically address the topic of
adoption. Most international adoption professional\'s experience has
come from \"on the job\" training and while a master\'s degree can be
extremely helpful clinically, it does not ensure a strong knowledge of
intercountry adoption or how to prepare a home study.

The strict requirement of one particular degree limits the ability of
the accredited agency to select home study personnel on the basis of
experience, personal sensitivity, moral character - without which one
can not judge the character of the adoptive parents - and many other
considerations other than academic degrees.

[Restricts Choices for Prospective Adoptive Parents and Increases
Costs]{.underline}

This requirement will reduce the number of choices for prospective
adoptive parents in terms of direct service agencies providing home
study and post placement services.

The increased expense of having to hire MSWs to do home studies would
significantly increase the cost of the services, which will result in
higher costs to adoptive families.

[Inequality in Provisions]{.underline}

Lastly, there appears to be inequality in these provisions. Employees
who conduct home studies are required to have a master\'s degree yet
those described in (e) non- supervisory employees who apply other
clinical skills and judgment may have a bachelor\'s degree in any field
as long as they also have prior relevant experience.

In addition, employees from \"exempt\"agencies or persons who only
perform home studies are not held to this standard.

In light of these positions, we recommend that section 96.37(f) be
modified to allow a bachelor\'s degree personnel to perform a home study
but have a master\'s degree supervisor review and approve the home
study.

I suggest the following revision:

**96.37(f)** Home studies. The agency\'s or person\'s employees who
conduct home studies:

> \(1\) Have ~~a minimum of~~ a master\'s degree from an accredited
> program of social work education ~~or a~~; master\'s degree (or
> doctorate) in a related human service field, including, but not
> limited to psychology, psychiatry, psychiatric nursing, counseling,
> rehabilitation counseling, or pastoral counseling; a minimum of a
> bachelor\'s degree from an accredited program of social work
> education; or a combination of a bachelor\'s degree in another human
> service field with prior experience in family and children\'s
> services, adoption or intercountry adoption;
>
> \(4\) In cases where the home study is completed by an employee with a
> bachelor\'s degree, the home study must be reviewed and approved by a
> supervisor who meets the requirements for supervisors in 96.37(d).

The current standard in most states is to have a master\'s degree
supervisor review and approve a bachelor's degree personnel home study.
This modification would align the proposed rule with the current
standard and eliminate the problems outlined above.

If the Department refuses to alter this regulation, we would then
respectfully request that a grand-fathering provision, such as found in
(d)(3) of 96.37, be instituted for home study personnel.

Recommend the following addition if our above recommendation of allowing
bachelor\'s degree personnel to perform home studies is denied:

> (f)( 4) In the case of employee who is or was an incumbent at the time
> the Convention enters into force for the United States, the employee
> has significant skills and experience in intercountry adoption and
> with performing home studies and has regular access for consultation
> and approval purposes to an individual with the qualifications listed
> in paragraph (f)(1) of this 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; please define more specifically. CHI feels 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 means of growing their
families. After acknowledging the possible hurdles and roadblocks, 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. Simply stated, to be able
to survive as a business, agencies must be able to share the risk and to
protect themselves contractually from the threat of 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. As stated in an article on this topic:

> *In* a *litigious society such* as *ours, the ability of an agency to
> educate prospective parents about the risks of international adoption
> and then to ask them to accept those risk is indispensable to an
> agency\'s ability to carry out its charitable purpose\... Put simply,
> the risks are multiple and known; and absent an ability to require
> prospective adoptive parents to* a *voluntarily accept the known
> risks, agencies may be precluded from their critical mission of
> finding homes for children.*

Imposition of a statutory prohibition such as that proposed in this
regulation is inappropriate interference with a well-justified business
practice.

Furthermore, in the DC adoption case of Ferenc vs. World Child (Ferenc,
et al, vs. World Child, et al, 977 F. Supp 56, \[1997, U.S. Dist. Ct,
D.C.\], affirmed, U.S. Cir. Ct., D.C. \[1998, No. 97-7167\]), the
Federal Circuit Court for the District of Columbia upheld the validity
of contract waiver clauses in service agreements between agencies and
potential adoptive parents. Eventually the Court dismissed all of the
plaintiff\'s claims prior to trial, finding in favor of the defendants
that there was no fraud or intentional misrepresentation, and that
waiver clauses were valid as a matter of public policy in contract
cases.

In addition, I have heard from doctors with international adoption
practices that they no longer give medical diagnosis or opinions but
only provide a \'risk assessment\' to the prospective adoptive parents
in order to estimate the probabilities of damage to a particular child.
Clearly this is due to the fact that they recognize the inability of US-
based doctors to make a diagnosis when they have not personally examined
the child and rely solely upon a third-party\'s representation of the
situation in a foreign country. It is, in our opinion, problematic that
the Department is holding adoption agencies to a higher standard than
medical physicians.

In addition, with the proposed liability that the current regulations
hold us to, having no way to protect ourselves and taking all of the
risks, liability, is not possible. Our insurance companies request
copies of our contracts, waivers, etc., for review before they give us
coverage. If we have no risk acknowledgement in the contract on the part
of the family, our insurance company will not cover us.

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).

96.40(f)(3)

Recommend the following revision:

\(3\) It provides written receipts to the prospective adoptive parent(s)
for [total fees collected directly by the aqency]{.underline} in the
Convention country and retains copies of such receipts.

The word \"prospective\" should be struck from this sentence since by
this time the clients are adoptive parents and no longer prospective.

Agencies should only be required to provide receipts for fees that they
themselves collected and cannot be expected to give receipts for
services which they did not perform. The addition of the phrase \"total
fees collected directly by the agency\" clarifies the agency\'s
accounting responsibility. This also leaves out having to provide
receipts from the country of origin.

[Proposed Structure Promotes Litigation]{.underline}

This regulation places 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 of, 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 lands.

Agencies are in business to promote the charitable purpose of
\"unit\[ing\] children living in terrible conditions in foreign
orphanages with parents who want them,\" Howard M. Cooper, \"Enforcement
of Contractual Release and Hold Harmless Language in \'Wrongful
Adoption\' Cases,\" Boston Bar Journal, May/June 2000 (Appendix D). For
this reason, the state and federal government have granted such agencies
non-profit status so that they can fulfill their important mission.

If anything, non-profit corporations deserve protection from liability
in this already overly litigious society. For this precise reason, some
states have enacted statutes that provide non-profits with immunity from
liability for 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 in Appendix E).

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 lands 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 further require agencies to assume responsibility for
their foreign supervised providers. This is an impossible task and
assumption of liability by primary provider agencies is an ineffective
means of accomplishing it.

I would like to take this opportunity to describe the practical
real-world circumstances that agencies face everyday. It is the same
circumstances that necessitate international adoption that create
uncertainty and risk in the process. For example, birthmothers
abandoning children due to extreme poverty, lack of adequate care and/or
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. Orphanage staff
spend their time and resources in meeting the basic life-sustaining
needs of the children and are usually ill-equipped to focus on extensive
and accurate medical evaluations and diagnosis. In many instances,
adequate testing to determine true 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
birth mother regarding genetic predispositions, visit every orphanage,
attend every doctor\'s visit, and file every paper for every child
eligible for international adoption. American agencies\' chances of
successfully policing their foreign counterparts are extraordinarily
difficult to accomplish and this purpose will not be furthered
effectively by imposition of liability on agencies.

American agencies can, however, comply with the other suggestions set
forth in section 96.46. Specifically, they can perform a reasonable
investigation of our foreign contacts, ensure they understand and comply
with the policies behind the Hague Convention and the general standards
\~f 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 workable.

[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. If the suspension was done without
notice, without any standard of evidence contained in the regulations
for the accrediting entity to base its actions, then the accredited
agency possibly innocent of malicious efforts, could find itself out of
business before it could appeal the act of the accrediting entity. 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 and if the prospective adoptive
parents have a say in the decision.

Ginger Healy Nov. 10, 2003