Intercountry Adoptions: Regulatory Changes to Accreditation and Approval Regulations in Intercountry Adoption
Citation | 85 FR 74492 |
Published date | 20 November 2020 |
Record Number | 2020-24391 |
Court | State Department |
Federal Register, Volume 85 Issue 225 (Friday, November 20, 2020)
[Federal Register Volume 85, Number 225 (Friday, November 20, 2020)] [Proposed Rules] [Pages 74492-74557] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 2020-24391] [[Page 74491]] Vol. 85 Friday, No. 225 November 20, 2020 Part II Department of State ----------------------------------------------------------------------- 22 CFR Part 96 Intercountry Adoptions: Regulatory Changes to Accreditation and Approval Regulations in Intercountry Adoption; Proposed Rule Federal Register / Vol. 85 , No. 225 / Friday, November 20, 2020 / Proposed Rules [[Page 74492]] ----------------------------------------------------------------------- DEPARTMENT OF STATE 22 CFR Part 96 [Public Notice: 10732] RIN 1400-AE39 Intercountry Adoptions: Regulatory Changes to Accreditation and Approval Regulations in Intercountry Adoption AGENCY: Department of State. ACTION: Notice of proposed rulemaking. ----------------------------------------------------------------------- SUMMARY: The Department of State (the Department) is proposing revisions to the Code of Federal Regulations to amend requirements for accreditation and authorization by the United States to provide adoption services in intercountry adoption cases. This proposed rule amends regulations to provide clarification, updating, or other adaptation of familiar accreditation and approval standards for intercountry adoption. It includes long-awaited provisions for intercountry adoption by relatives. The new regulations simplify and streamline the process by limiting the number of adoption services the primary provider must provide and capitalizing on the adoptive family's understanding of local culture and institutions. It provides a comprehensive definition of relative to clarify the relationships that are encompassed in the amendments to the accreditation rule. Also featured in this proposed rule is a new focus on supporting children and families in the event their adoptive placement disrupts. DATES: The Department will accept comments on the proposed regulation until January 19, 2021. ADDRESSES: Internet: You may view this proposed rule and submit your comments by visiting the Regulations.gov website at www.regulations.gov, and searching for docket number DOS-2020-0048. Submitting comments electronically through this website is the preferred method. FOR FURTHER INFORMATION CONTACT: Technical Information: Marisa Light, (202) 485-6042. Legal Information: Carine L. Rosalia, (202) 485-6092. SUPPLEMENTARY INFORMATION: Preamble Contents I. Introduction II. Proposed Changes A. Adoption by Relatives B. Amendments Relating to Accrediting Entities and Accreditation C. Child Buying and Protection of Prospective Adoptive Parents D. Post-Placement Monitoring and Post-Adoption Services E. Submission of Complaints F. Reasonable Efforts To Find a Timely and Qualified Adoptive Placement in Outgoing Cases G. Provisions Relating to Corporate Governance and Oversight H. Procedures and Requirements for Adverse Action by the Secretary, Including for Challenges to Such Adverse Action I. Miscellaneous Amendments III. Response to Regulatory Reform Solicitation of Comments IV. Timeline for Implementing Changes in the Proposed Rule, if Approved V. Regulatory Analysis I. Introduction This proposed rule amends part 96 to provide clarification, updating, or other adaptation of familiar accreditation and approval standards for intercountry adoption. These changes derive from observations and experience with the practical operation of the accreditation and approval regulations in the fourteen years since the regulations went into effect. The Department engages in systematic review and analysis of its regulatory responsibilities. Since the inception of the accreditation scheme in 2006 and entry into force of the 1993 Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (Convention) in 2008, we established ongoing formal and informal interactions with accrediting entities (AEs), adoption service providers (ASPs), and other stakeholders such as adoptive parents, law enforcement officials, and foreign Central Authorities. Through each of these interactions we seek greater insight into our work and the effectiveness of the tools we employ to achieve the objectives of our national law and regulations and the Convention itself. Annually, we engage in an even deeper review process as we perform an evaluation of the work of our AEs, culminating in a senior level review meeting with AE and Department leaders. This review process allows for reflection and a chance to establish new benchmarks, to update and correct AE policies and procedures, as well as refine our own standard operating procedures. Through this analytical process we become aware of deficiencies in the regulations or areas in which additional information or clarification would be helpful and beneficial for children, their birth parents, and adoptive families in intercountry adoption. Background and Context The accreditation regulations flow from the Intercountry Adoption Act of 2000 (IAA), which implements the Convention. The United States signed the Convention shortly after its completion in 1993, enacted the IAA implementing the Convention in 2000, and published implementing regulations, including the accreditation regulations in 22 CFR part 96, in 2006. With these milestones achieved, the United States deposited its instrument of ratification to the Convention in December 2007, and the Convention entered into force with respect to the United States on April 1, 2008. Effective in 2014, the Intercountry Adoption Universal Accreditation Act (UAA) extended the standards in this regulation to all adoption service providers providing intercountry adoption services. For additional information about the development of the Convention, the IAA, and the accreditation regulations, each is treated in detail in the preambular discussion of the proposed and final rules in 2003 and 2005, respectively. Those accounts are found in 68 FR 54064 (September 15, 2003); and in 71 FR 8064 (February 15, 2006). Changes in the Number and Characteristics of Intercountry Adoptions Worldwide In 2008, when the Convention entered into force for the United States, U.S. citizens adopted 17,456 children through intercountry adoptions, down from a historical peak of 22,884 intercountry adoptions in 2004. In FY 2019, the most recent year for which the Department has published data, U.S. citizens adopted 2,971 children through intercountry adoption. It is important to note that the trend in declining adoptions is not a trend experienced by the United States alone. All receiving countries have experienced this decline, and to similar degree. Most experts agree that this decline reflects numerous factors, many of which are discussed in the narratives to our Annual Report to the Congress.\1\ --------------------------------------------------------------------------- \1\ https://travel.state.gov/content/travel/en/Intercountry-Adoption/adopt_ref/adoption-publications.html. --------------------------------------------------------------------------- Accompanying this decline in numbers has been a change in the characteristics of children adopted through intercountry adoption. Dr. Peter Selman of Newcastle University has studied worldwide intercountry adoption trends dating back to before World War II, with more attention given to adoption over the past 25 years. In 2015 he reported that adoption of [[Page 74493]] children with ``special needs'' are becoming more common, as are adoptions of older age children and of sibling groups. Dr. Selman notes that while there remains a lack of agreement on what exactly the term ``special needs'' covers, the trend first became obvious to him over the period from 2005 to 2009 with respect to adoptions from China. In 2005, the percentage of children adopted from China with special needs was 9% for all adoptions in all receiving countries. By 2007, the number of adopted children from China with special needs had risen to 30%. By 2009, 49% of all adopted children from China were children with special needs. This trend was echoed in a report by a U.S. coalition of child welfare organizations that said many countries of origin are increasingly limiting intercountry adoption to older children or those who may have special needs. In addition, many children are remaining in orphanages for longer periods of time prior to family placement, and have increased risk factors for emotional, behavioral, and developmental difficulties. Citing Department of State statistics, the coalition noted that in 1999 over 50% of adopted children were under the age of 1 year; whereas in 2013 the number of adopted children under 1 year had dropped to less than 8%. A Viable Option for Eligible Children in Every Country The Department is dedicated to maintaining intercountry adoption as a viable option for eligible children in every country, world-wide. To do so, it engages in sustained bilateral diplomacy advocating that countries of origin establish procedures and essential safeguards that allow intercountry adoption for children who cannot find permanent family solutions in their country of origin. The Department also oversees the accreditation system through which the United States establishes these safeguards. The proposed changes in this NPRM largely represent essential revisions to make the accreditation regulations more effective given the purposes of the Convention and implementing legislation, noted above, working for the best interests of children and enhanced viability of intercountry adoption world-wide. II. Proposed Changes to 22 CFR Part 96 A. Adoption by Relatives The Department is pleased to introduce provisions relating to the intercountry adoption of relatives in the new subpart R. Due to the reasons discussed below, the relative adoption provisions are the most universally requested addition from the public over the last ten years. Section 502(a) of the IAA (42 U.S.C. 14952) authorizes the Department to establish alternative regulations for adoption of children by individuals related to them by blood, marriage, or adoption to the extent consistent with the Convention. In support of this addition, we added the following definition of relative to the section on definitions, Sec. 96.2: Relative, for the purposes of the alternative procedures for the intercountry adoption of relatives found in subpart R, means any of the following: Parent, step-parent, brother, step-brother, sister, step- sister, grandparent, aunt, uncle, half-brother to the child's parent, half-sister to the child's parent, half-brother, half-sister, or the U.S. citizen spouse of the person with one of these qualifying relationships with the child. The relationship can exist by virtue of blood, marriage, or adoption. The new regulations on adoption by relatives in subpart R simplify the role of the primary provider in such cases by limiting the number of adoption services the primary provider is required to provide. Of the six adoption services, the required services primary providers would continue to need to provide for adoptions by relatives are: Performing a background study on a child or a home study on a prospective adoptive parent(s), and reporting on such a study (service 3); Monitoring a case after a child has been placed with propective adoptive parent(s) until final adoption (service 5); and When necessary because of a disruption before final adoption, assuming custody and providing (including faciplitation the provision of) child care or any other social service pending an alternative placement (service 6). However, primary providers would not generally be required to provide: Identifying a child for adoption and arranging an adoption (service 1); Securing the necessary consent to termination of parental rights and to adoption (service 2); and Making non-judicial determinations of the best interests of a child and the appropriateness of an adoptive placement for the child (service 4). We are proposing this exemption because in many cases, these services may be provided by the adoptive family and/or local authorities, without the prior assistance of a primary provider. The Department notes, however, that the primary provider is responsible for any other adoption services (including services 1, 2, or 4) it actually provides or facilitates in the case. All services in relative adoption cases must be provided in accordance with Sec. 96.44. The most persistent concerns expressed to the Department about the need for regulations relating to adoption by relatives are to reduce costs and to simplify the process associated with such adoptions such that they take less time. More specifically, stakeholders have indicated that the current regulations do not reflect the fact that families adopting relative children abroad already provide most of the key adoption services in such cases, handling many of the administrative tasks associated with an adoption abroad. Stakeholders also point out that many relative cases involve an emergent situation in which a child or children are suddenly bereft of their parents and action on the case needs to be taken quickly. In addition to these concerns, ASPs have informed the Department that many relative cases occur in countries where few if any U.S. ASPs have adoption programs or expertise. The new provisions are thus crafted in a way to allow primary providers to rely on the intimate knowledge of family members in the country of origin. It is the Department's hope that this approach will make it less burdensome for ASPs to provide services in relative adoptions and thus encourage ASPs to serve as primary providers in relative adoption cases. This would relieve families trying to adopt their relative child abroad of the burden of contacting many ASPs seeking one willing to work in a country where it has little if any expertise. Often in such cases, when the family cannot find an ASP to serve as a primary provider in their case, they end up having to make alternative arrangements for the child, which may not be in the child's best interests. In some cases, the U.S. relative feels compelled to relocate to the child's country of origin or residence to reside with her/him in challenging conditions separated from family members in the United States, thus introducing additional stresses into a situation in which emotions and resources are already strained. Prospective adoptive parents adopting a relative child abroad must fulfill the same 10 hours of training and preparation required in Sec. 96.48(a) (which are unchanged in the proposed rulemaking) as in all other intercountry adoption cases. The proposed amendment in Sec. 96.100(c) provides that this training should be completed prior to finalizing the adoption or grant of legal custody. The proposed amendment also recognizes that in some relative [[Page 74494]] cases, the adoption may be finalized before a primary provider becomes involved in the case. In such cases the primary provider ``must verify such training requirements have been met as soon as practicable.'' B. Amendments Relating to Accrediting Entities and Accreditation Primary responsibility for accreditation and approval of ASPs, and monitoring and oversight of ASPs' compliance with the IAA, the UAA, and their implementing regulations, rests not with the Department but with one or more designated accrediting entities (AEs) (42 U.S.C. 14922). The IAA does not permit a U.S. Federal agency to assume the role of AE. An AE must be either a nonprofit organization (as described in section 501(c)(3) of the Internal Revenue Code), or a public entity other than a federal entity, that otherwise meets the requirements of the regulations. In accordance with these IAA principles, in 2006 the Department designated two AEs to accredit or approve U.S. adoption service providers who, upon such accreditation or approval, were authorized to provide adoption services in intercountry adoption cases subject to the Convention. Since 2008, both Department-designated AEs have withdrawn from that role. The Department designated the current accrediting entity, the Intercountry Adoption Accreditation and Maintenance Entity, Inc. (IAAME), in 2017. The IAA and existing Sec. 96.4 provide that there can be more than one designated AE and that AE roles be defined in the Secretary's written agreement with AEs. Proposed revisions to various sections of the rule clarify how responsibilities may be allocated among AEs if more than one AE is designated. Revisions to Sec. 96.6(c) and (d) clarify that an AE must have the capacity to monitor and take appropriate adverse action against ASPs, even if the ASP was initially accredited or approved by a different AE. Revisions to Sec. Sec. 96.8 and 96.9 clarify that the fees charged by an AE must relate to the functions it is authorized to provide, whether or not that AE is authorized to perform all AE functions. The Department notes that in the event multiple AEs are in operation at one time, under Sec. 96.4 the Department can expressly designate the jurisdiction of each AE, thus preventing jurisdiction overlap, competition or unfair forum shopping for agencies seeking or holding accreditation. The Department also notes that Sec. 96.27(d) helps ensure that each AE uses methods that are ``substantially the same'' as those of any other designated AEs. Revisions to Sec. 96.8 introduce a new element to the Secretary's approval of AE fee schedules. The new provisions require the Department to publish proposed fee schedules in the Federal Register for public comment and review before approving the schedules. The Department is introducing this requirement to enhance transparency on an issue of concern noted by some stakeholders, and expects this to result in increased trust between the AE and the ASPs subject to AE fees. The amendment to Sec. 96.10(c)(2) modifies the criteria for finding an AE out of substantial compliance with the accreditation regulations, to include where an AE has accredited an ASP whose performance results in intervention by the Secretary. Section 96.24(a) lists particular skills and expertise that AE evaluators must have in order to effectively carry out an AE's responsibility to evaluate an ASP for accreditation or approval. The proposed amendments to Sec. 96.24(a) adds finance and accounting to this list of skills and expertise, reflecting AE experience that indicates that such skills are important to be able to evaluate an ASP's compliance with financial requirements under the regulations. Proposed edits to Sec. 96.26(b) clarify that information collected by an AE in the course of its work, including during monitoring and oversight, may be shared with appropriate tribal and foreign authorities. Section 96.26(d), formerly the last sentence of Sec. 96.26(c), now appears as an independent subsection clarifying that an AE must maintain a complete and accurate record of all information it receives related to an agency or person and the basis for an AE's decisions concerning the agency or person. New Sec. 96.7(a)(9) imposes the same requirement as to other records relating to an AE's role. Proposed revisions to Sec. 96.92 increase the frequency by which an AE is required to disseminate information to the public about the accreditation status of ASPs and adverse actions taken with respect to ASPs, thus ensuring that the most current information is regularly made available to the public. An AE typically disseminates this information via its website, which is updated regularly. Revisions to Sec. Sec. 96.43 and 96.94 require expanded reporting to the Secretary about disruption, dissolution, and unregulated custody transfers, because of the potential risk of harm to children and the potential repercussion to U.S. bilateral relationships associated with this conduct. These revisions impose no additional requirements on ASPs or the public. Subpart F's section on ``Scope'' was formerly Sec. 96.29, and under this proposal will be found at Sec. 96.28. The new Sec. 96.29 is entitled ``Compliance with all Applicable Laws'' and explicitly includes as standards within subpart F, upon which an AE can rely in making accreditation, approval, renewal, and maintenance decisions, certain existing regulatory requirements. These provisions include the prohibition on unauthorized provision of adoption services, the requirement to provide essential information to an AE, and compliance with the laws of each domestic and foreign jurisdiction in which an ASP operates when providing adoption services, and with the Convention, the IAA, and the UAA. A proposed amendment to Sec. 96.45(a) makes more explicit the existing requirement that primary providers ensure that when using foreign supervised providers to provide adoption services, those foreign supervised providers do so in accordance with the Convention, the IAA and the UAA. C. Prevention of Child Buying and Protection of Prospective Adoptive Parents Child Care Contributions The proposed rule revisions to Sec. Sec. 96.36(a) and 96.40(c)(4) aim to prohibit ASPs from charging prospective adoptive parents (PAPs) to care for a particular child prior to completion of the intercountry adoption process. Payment of monthly support fees to ASPs or local providers for the care of children where the intercountry adoption process is not complete can create an incentive to illicitly recruit children into institutions, while also providing a disincentive for expeditious processing of an adoption. In some cases, the fees charged to PAPs have been significantly higher than the normal costs associated with the care of children in the foreign country. AEs have identified these situations via ongoing internal research and monitoring, including comparisons of like-services provided by other ASPs as well as reviews of databases related to the provision of certain services. These practices substantially and unpredictably increase the costs of adoption for PAPs, who are not in a position either to object to the charges or to expedite the completion of the adoption, and may result in a situation where an adoptive family pays for long-term care of a child who is not in fact eligible for intercountry adoption. [[Page 74495]] The proposed revisions do not prohibit the transfer of funds to a foreign country to provide food, medical care or other provisions for children. ASPs may still include fees for food, medical care or other provisions for children in their program costs and may charge such fees to parents as part of their program fees. However, those fees must be structured as broader assistance to a country's child welfare efforts, must be dissociated from the care of a specific child, must be charged only once during the adoption process, and must be disclosed to PAPs as part of the ASP's overall fee disclosure. These proposed regulations place the responsibility for transferring and monitoring the use of such funds on the ASPs, and prohibit ASPs from shifting this responsibility to PAPs, who may be vulnerable to pressure or exploitation. The proposed revisions also require ASPs to verify that the fees are not unreasonable for the country where the services are provided and are used for their intended purposes. While there is not a formal process AEs use for analyzing or auditing the reasonableness of the fees charged, the Department notes that AEs use administrative data, including publicly available resources and data. To increase transparency and provide an AE with an effective tool for assessing an ASP's compliance with this prohibition on child buying, revisions to Sec. 96.36(b) would require the ASP to retain a record of all foreign financial transactions, to enhance transparency and provide a means of identifying potential child buying. Prohibited Compensation Practices Section 96.34 prohibits the payment of incentive or contingent fees that likewise create an incentive to recruit children for intercountry adoption, and gives effect to this prohibition by requiring ASPs to compensate all service providers only for services rendered, and only on a wage, salary, or fee-for-service basis that is not unreasonably high in connection with the actual cost of services. Proposed revisions to Sec. 96.34 address known practices used to circumvent this limitation, such as making these excessive payments to associates of foreign supervised providers or other intermediaries who do not themselves provide adoption services, by extending this limitation on unreasonable compensation to any entity involved in an intercountry adoption. Transparency of Fees The Department has received feedback from prospective adoptive parents who have noted that there are discrepancies in the amount of information that agencies and persons provide about their fees, making prospective adoptive parents' selection process difficult. The Department has determined that many prospective adoptive parents would benefit from an increased level of transparency about what to expect during the intercountry adoption process. This is in part because currently, many prospective adoptive parents fear that because some fees are described in very general terms, there may be undisclosed costs hidden from view. Undisclosed fees may stretch adoptive family resources so thin as to cast doubt on whether the family will be able to complete the adoption. To address these concerns, the proposed revisions in Sec. Sec. 96.39 and 96.40 enhance the general public's knowledge of ASP practice, and insulate PAPs from being charged unexpected or excessive fees at points in the adoption process where they are vulnerable to such overcharging. The proposed changes increase the amount and frequency of information disclosure relating to fees to the general public and to an ASP's prospective clients. In particular, the proposed rule in Sec. Sec. 96.39(a) and 96.40 would require ASPs to disclose a schedule of expected fees and expenses on their websites, and to provide an itemized disclosure of fees to PAPs before providing any adoption services. The rule also would require ASPs to distinguish fees for services provided in the United States from those provided in a foreign country. Along these lines of fee transparency, Sec. 96.46(b)(7) and (8) are proposed to be amended to prohibit direct billing of PAPs by foreign supervised providers. Before this proposed change, foreign supervised providers could require direct payments for services abroad from PAPs, thus exposing PAPs to potential abuses such as overcharging. Under these changes, the primary provider would be responsible for assessing fees from PAPs and transmitting the fees to the foreign supervised provider. The change is also found at Sec. 96.40(c)(6). The Department specifically requests comment on the cost of maintaining fee transparency under this proposal. Segregation of Client Funds Proposed provisions in Sec. 96.40(f) would reinforce the principle that client funds received but not yet expended for agreed upon services are not part of the ASP's assets, and so must be segregated from both their general operating funds and the required two months' reserve fund. D. Post-Placement Monitoring and Post-Adoption Services ASPs play a critical role in supporting families in the post- placement and post-adoption periods. Although the majority of intercountry adoptions are successful, some families experience adjustment challenges, discovery of unknown medical or emotional needs, or other issues that may lead to instability of the placement or the adoption. In addition to the existing requirements relating to supervising a child's placement until final adoption and providing counseling in the event that a placement is in crisis, the proposed rule requires ASPs to take all appropriate measures to inform the parents of local and State laws and legal resources pertaining to disruption of a placement and appropriate measures for making another placement of a child, to explain the risks and implications of disruption for the child, and to provide resources to address potential future crises. ASPs would be required to provide specific points of contact for support in the event an adoptive family faces difficulties that place permanency at risk. The Department has found that the generalized requirements related to providing support to the family experiencing disruption under current Sec. 96.50 did not provide sufficient information to PAPs to serve their needs nor those of the children. Proposed Sec. 96.50(c) through (h) delineate an ASP's specific responsibilities for responding to disruptions that occur while the PAPs and the child are still in the country of origin. These requirements are aimed at ensuring the PAPs are supported in the process of considering a possible disruption and are informed about the implications of a disrupted placement for the child and the family, including any siblings. For disruptions in the United States, ASPs will be required to notify the Department and, in placing the child with a new family, to provide information about sibling relationships, outstanding post- placement reporting requirements, and the child's citizenship status, all of which are critical for the child's long-term safety and welfare. For disruptions in the country of origin, ASPs will be required to notify local authorities, as well as the Department, of the disruption and to ensure the safe and timely transfer or temporary placement of the child consistent with local law. Proposed amendments to Sec. 96.50(f) would impose new requirements for notification to child welfare authorities, the foreign competent or Central [[Page 74496]] Authorities, and the Secretary, of a disruption or a family's intent to disrupt. Such notification will help to ensure the child's safety and welfare and will allow the Department to facilitate communication with foreign authorities to mitigate the potential repercussions to a country's willingness to continue to engage with the United States with respect to intercountry adoption. Throughout this section, there are revisions intended to address increasing awareness of the parents' responsibilities to the child and an ASP's responsibilities to both the child and the family. Proposed amendments to Sec. 96.51(b) provide for informing the PAPs whether post-adoption services, including any post-adoption reporting, are included in the agency's or person's fees, and if not, enumerate the cost the agency or person would charge for such services and whether it would provide services if an adoption is dissolved. E. Submission of Complaints An amendment to Sec. 96.2 permits complaints to be submitted electronically as well as in writing. Amendments to Sec. 96.41(b) and (e) allow for complaints to be submitted by any individual or entity, and extend the protection against retaliation to any individual or entity who makes a complaint, or otherwise expresses a grievance, provides information to an AE on the ASP's performance, or questions the conduct of or expresses an opinion about the performance of an ASP. F. Reasonable Efforts To Find a Timely and Qualified Adoptive Placement in Outgoing Cases Article 4 of the Convention provides that a Convention adoption may occur when competent authorities have determined that the child is adoptable and that, after possibilities for placement of the child within the State of origin have been given due consideration, the authorities have determined that an intercountry adoption is in the child's best interests. The new provisions in Sec. 96.54 would require that ASPs demonstrate reasonable efforts to find a timely adoptive placement for the child in the United States in all cases (except for certain cases involving adoption by relatives). This revision will ensure that ASPs provide the information on the child to interested PAPs in the United States in an effort to find a timely placement, in accordance with Article 4 of the Convention. These efforts must be documented for a court's review. With this information, courts would be better able to determine whether a placement abroad is in the best interests of the child. Also, the provision relating to adoption of siblings in Sec. 96.54(d)(2) was expanded to make diligent efforts to place siblings together consistent with relevant laws in most States and with best practices within the child welfare community. While not directly addressed in the IAA or the Convention, placing siblings together whenever possible is consistent with the notion discussed at the time of the drafting of the Convention that termination of parental rights does not include termination of other familial relationships. G. Provisions Relating to Corporate Governance and Oversight The proposed amendment to Sec. 96.32(c) requires the ASP to maintain for 25 years records relating to the selection, monitoring, and oversight of foreign supervised providers, financial transactions to and from foreign countries, and records relating to responding to complaints. The proposed amendment to Sec. 96.32(e)(4) requires the ASP to disclose to an AE certain related entities, to the extent they provided services to or receive payment from the ASP. A period of 25 years was chosen to ensure that ASP records relevant to a particular adoption remain available to adopted children who, after becoming adults, wish to access their records in order to learn about their adoption and their origins. H. Procedures and Requirements for Adverse Action by the Secretary, Including for Challenges to Such Adverse Action The proposed rule would amend provisions in subpart L regarding adverse action by the Secretary. The proposed rule sets forth procedural requirements for providing ASPs with adequate notice of any adverse action taken by the Secretary and the reasons for such action and describes the administrative process by which an ASP may contest such adverse action. Upon exercising these authorities for the first time in 2016, the Department determined that it would be appropriate to supply the public with relevant details as to the place, requirements, procedures and purpose of such notice and proceedings. Section 96.83(b) describes the notification and supporting evidence to be provided to the ASP in the event of suspension or cancellation of accreditation by the Secretary, and Sec. Sec. 96.88(a) and 96.89(a) describe the notification and supporting evidence to be provided to the ASP in the event of a temporary or permanent debarment. New Sec. Sec. 96.84(a) and (b) would set forth procedures by which an ASP can object to a suspension or cancellation as unjustified, and the standards by which the Department will review such an objection. This is distinguished from a petition for relief from suspension or cancellation based upon the ASP's correction of deficiencies, which is now addressed in Sec. 96.84(c). Section 96.85(c) provides that the Secretary shall ordinarily give notice of a proposed finding of debarment and an opportunity to be heard before the debarment takes effect, and may make the debarment effective immediately only where the Secretary finds that doing so is necessary to address a substantial risk of significant harm to children and families. Section 96.88 sets forth in detail the procedures, requirements, time frames, and standards of review that apply where an ASP objects to a proposed debarment, and Sec. 96.89 sets forth the corresponding procedures, requirements, time frames, and standards of review for post-debarment review where an ASP objects to a debarment that is effective immediately. The time frames under Sec. 96.89 are somewhat shorter, in recognition of the fact that the ASP is unable to operate during the pendency of a post-debarment challenge, but the Department anticipates that the appointed hearing officer will extend the default time frames if the parties so request. Clarifying changes to Sec. 96.85 specify that the Secretary may consider a detrimental effect on the ability of U.S. citizens to adopt children in the future in considering whether an ASP's continued accreditation is not in the best interests of children and families, and that an ASP that is debarred ceases to be accredited upon debarment. The proposed Sec. 96.88 includes information as to how an ASP subject to debarment may request an administrative hearing on the matter. Section 96.83(c) adds USCIS, state licensing authorities, and foreign central authorities to the list of entities to be notified in the event of adverse action by the Secretary, and conforming changes are made to such notification provisions throughout this subpart. I. Miscellaneous Amendments The requirement to retain a completed FBI Form FD-258 contained in Sec. 96.35(c)(4) and (d)(2) have been removed, as this form cannot be used for the purpose stated in those provisions under current FBI guidance. [[Page 74497]] A proposed amendment to Sec. 96.25(c) allows an AE to take adverse action for ``engag[ing] in deliberate destruction of documentation, or provid[ing] false or misleading documents or information.'' We propose to add a definition to the list of terms in Sec. 96.2 for ``authorization.'' This term derives from a key provision in the Hague Adoption Convention, and until now it was missing from our collection of key terms and definitions. We propose to augment the definition of the term best interests of the child to include the situation in which the child is outside of the United States, in which case best interests shall be interpreted in light of the objects of the Convention without reference to any particular U.S. State. Another new proposed term added to the definitions in Sec. 96.2 is unregulated custody transfer, which refers to the placement of a child with a person or entity with the intent of severing the child's existing parent-child or guardian-child relationship without taking the appropriate steps, both to ensure the child's safety and permanency and to transfer legal custody or guardianship of the child. The proposed standards in Sec. 96.37 relate to education and experience requirements for ASP employees. In Sec. 96.37(c), we expand the standard to include not only clinical skills and judgment, but also training in the professional delivery of intercountry adoption services. Section 96.38 addresses training requirements for social service personnel. Section 96.38(b) adds important topics on which the social service personnel need expertise, to include, among others, the physical, psychological, cognitive, and emotional issues facing children who have experienced trauma, abuse, including sexual abuse, or neglect and other factors with a long-term impact on a child's social and emotional development. A proposed amendment to Sec. 96.38(d) provides for an exemption from the orientation and initial training of newly-hired employees, if within the last two years they have received such orientation in another organization and are otherwise current in their other training requirements. At the request of ASPs, we have proposed amendments to Sec. 96.47 with instructions on how an ASP may withdraw its recommendation of PAPs for adoption when it withdraws its approval of the home study. Minor proposed revisions to the definitions in Sec. 96.2 include simplification of the term child welfare services by removing elements suggestive of adoption services; clarification that the term public domestic authority includes ``an authority operated by a State, local, or tribal government within the United States or an agent of such government;'' and further clarification that the term public foreign authority only refers to courts or regulatory bodies operated by the national or subnational governments of a foreign country. Finally, the Department proposes minor technical edits, including punctuation, to Sec. Sec. 96.2; 96.4(c); 96.5; 96.6(h); 96.7(a)(4); 96.7(b)(1), 96.7(c); 96.10(c)(6) and (7); 96.12(a); 96.27; 96.33(f); 96.35; 96.39(d); 96.45(b)(9); 96.49(e), (g) and (i); and 96.54(d)(1) and (2) that do not have substantive impacts on accreditation requirements and that removed references to temporary accreditation, which expired in 2010. III. Response to Regulatory Reform Solicitation of Comments On August 7, 2018, the Department published a Federal Register document soliciting comments from the public on regulatory reform initiatives as outlined in Executive Order 13777 (``Enforcing the Regulatory Reform Agenda''). 83 FR 38669. The Department received comments relating to this proposed rule, which can be accessed at https://beta.regulations.gov/comment/DOS_FRDOC_0001-4901. In response to the Department's Federal Register document, the Department received comments relating to foreign supervised providers (FSPs) as well as other concerns related to the regulation of intercountry adoption. At the present time, while we acknowledge the concerns identified by the commenter related to oversight of FSPs in certain limited circumstances, in this notice of proposed rulemaking, we are not addressing any regulatory changes to accreditation standards relating to FSPs. We will instead undertake a consultative process on this issue with a wide variety of stakeholders in intercountry adoption and consider the entire range of standards relating to FSPs. Through this consultative process, we will explore solutions for resolving concerns related to FSPs, including those that do not require changes in regulation. The Department's responses to the proposed revisions follow: (a) Proposed change: Remove Sec. Sec. 96.35(c)(4) and 96.35(d)(2). The Department's response: These sections have been removed in this proposed rule. (b) Proposed change: Amend Sec. 96.8(b)(1) by removing the word ``non-refundable.'' The Department disagrees with the suggested deletion. The Department's response: AE fees have always been non- refundable to protect an AE's capacity to perform its roles and functions that they are required to perform by law and their agreement with the Department. An AE is required to charge no more than the fees necessary to perform its functions. AEs monitor ASP activity as a whole, not individual cases, and the expenditure of funds to cover accreditation services is not tied to any individual adoption. Accordingly, the current AE's schedule of fees was calculated based on its full cost of conducting accreditation responsibilities. This cost was divided by the estimated number of adoptions, based on currently available data, as a way of allocating the AE's costs across ASPs of significantly different size. If fees were made refundable where an individual case is withdrawn, the per-adoption fee would be correspondingly higher to cover the unchanged cost of accreditation services. Proposed change: Amend Sec. 96.8(c) by adding the following sentence at the end of the existing paragraph: ``An accrediting entity must make available to the public its demonstration of compliance with Sec. 96.8(a) and (b), upon request.'' The Department's response: The Department has revised Sec. 96.8(b) as noted in Section II (b), above. (c) Proposed change: Re-order paragraphs within Sec. 96.8 and add two new paragraphs as follows: (1) Sec. 96.8(d): ``An accrediting entity must not charge additional fees for the placement of siblings, when placed for adoption with the same parents at the same time.'' The Department's response: The Department disagrees with this suggestion. The amount of the current AE's monitoring and oversight fee per adoption case was established based on the projected number of total adoption cases and the AE's projected expenses for conducting monitoring and oversight activities. At this time, there is insufficient data to allow the AE to create a model that exempts siblings from the monitoring and oversight fee structure. This may be considered in the future when adequate data is available. (2) Sec. 96.8(e): ``If an accrediting entity establishes fees based on the number of prospective adoptive parents an accredited agency or approved person contracts with, such determinations shall take into account the number of applicants who complete adoptions with these adoption service providers.'' The Department's response: The Department disagrees with this suggestion. The current AE's schedule of fees was designed to cover the projected cost of conducting [[Page 74498]] accreditation and monitoring and oversight activities for all intercountry adoptions across ASPs and country programs. AEs monitor ASP activity as a whole. The fee model allows ASPs to pay fees incrementally as cases are accepted, rather than paying significantly larger fees as a lump sum at the beginning of the four-year accreditation cycle, and thus ensures that the costs of monitoring are borne proportionately to the number of adoption cases handled by each ASP. If the suggestion were accepted, the AE would be unable to fund its activities for the next four years without immediately assessing large accreditation fees on agencies. (d) Proposed change: Amend the beginning of Sec. 96.39(a) to read: ``The agency or person fully discloses in writing to the general public upon request and to prospective client(s) prior to signing a contract:'' The Department's response: The Department disagrees with this suggestion, because the information to be disclosed is readily available even at first contact and thus creates no new burden to produce. Disclosure at first contact also provides a PAP with information it can use in selecting the ASP with which they want to work. (e) Proposed change: Amend Sec. 96.49(i) to read: ``The agency or person ensures that any videotapes or photographs taken by the accredited agency or person are identified by the date on which the videotape or photograph was recorded or taken and that they were made in compliance with the laws in the country where recorded or taken.'' The Department's response: We incorporated this suggested revision in the proposed rule; the amended provision only applies to photos taken by accredited or approved ASPs and their foreign supervised providers. The Department made this change in recognition that U.S. providers have limited or no ability to determine when and under what circumstances photos or videos provided by a foreign adoption authority or unaffiliated third party were taken. (f) Proposed change: Amend Sec. 96.52(a) to read: ``When requested, the agency or person informs the Central Authority of the Convention country or the Secretary about necessary information regarding a specific adoption case and the measures taken to complete it, as well as about the progress of the placement if a probationary period is required.'' The Department's response: The Department understands the concern behind this suggestion and addressed it by modifying the suggested language to more precisely indicate the circumstances under which an agency or person must inform the Central Authorities about the case. Additionally, we added: In the case of information developed or new information relating to the suitability and eligibility of adoptive parents, inform USCIS, the sole authority for making suitability determinations. (g) Proposed change: Strike Sec. 96.52(b)(4), because the actions described therein are performed by the Department, not accredited agencies or approved persons. The Department's response: Rather than deleting this provision, the Department takes the point and adapted it to include ``or confirm that this information has been transmitted to the foreign country's Central Authority or other competent authority by the United States' Central Authority. (h) Proposed change: Amend Sec. 96.52(d) as follows: ``When requested by the Secretary or a foreign Central Authority, the agency or person returns the original home study on the prospective adoptive parent(s) and/or the original child background study to the authorities that forwarded them.'' The Department's response: The amendment has been made to Sec. 96.52(d) after adding the term ``original'' to it. The Department made the same changes in Sec. 96.55(c) in relation to requests for return of original home studies or child background studies when the transfer of the child has not taken place. (i) Proposed change: Strike Sec. 96.52(e), as being too broad. The Department's response: The Department has not accepted this deletion but has modified the language to clarify that the obligation only applies to requirements that the Secretary has previously identified under existing authorities and made known (directly or via an AE) to ASPs. IV. Timeline for Implementing Changes in the Proposed Rule, if Approved Some changes in the proposed rule would become effective 180 days after publication of the final rule. The Department invites comment on the timelines for implementation. Provisions in Sec. 96.40 relating to fee disclosures would take effect 180 days after publication of the final rule. To comply with the new rule, ASPs will need to change their fee disclosures. The Department believes that this timeframe would allow ASPs to review already available information, determine whether such fees and expenses should be characterized as fees and expenses for services provided in the United States or overseas, respectively, and begin to provide this information to PAPs. The Department plans to implement the new alternative procedures for adoption of relatives abroad three months after publication of the final rule. V. Regulatory Analysis Administrative Procedure Act (APA) The Department is issuing this rule as a notice of proposed rulemaking (NPRM) as required by the IAA and welcome comments from the public on every aspect of the NPRM. Executive Order 13771: Reducing Regulation and Controlling Regulatory Costs This proposed rule is expected to be an Executive Order 13771 regulatory action. Details about the estimated costs of this proposed rule can be found in the RFA Discussion, below. Regulatory Flexibility Act/Executive Order 13272: Small Business This section considers the effects that the proposed amendments to the accreditation regulations may have on accredited or approved ASPs as required by the Regulatory Flexibility Act (RFA, 5 U.S.C. et seq., Pub. L. 96-354) as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA). The RFA generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under 5 U.S.C. 553(b). 42 U.S.C. 14923(a)(3) provides that subsections (b), (c), and (d) of 5 U.S.C. 553 apply to this rulemaking. The Department requests information and data from the public that would assist in better understanding the impact of this proposed rule on small entities. The Department also seeks input from the public on alternatives that will accomplish the same objectives and minimize the proposed rule's economic impact on small entities. Our preliminary initial regulatory flexibility analysis (IRFA) follows. 1. A description of the reasons why the action is being considered by the Department: This proposed rule clarifies, updates, or otherwise adapts a limited number of changes to accreditation and approval standards, most of which have been in full operation since 2006. The proposed changes derive from our observation of the rule's practical operation and from the observations of intercountry adoption stakeholders such as adoptive parents, ASPs, Congressional offices, and law enforcement authorities. Taken [[Page 74499]] together, these interactions with a broad cross section of organizations, critics, entities, and individuals have allowed us to reflect on potential improvements and regulatory adaptations. Through these changes we want to refine our work to better serve the birth families, adoptive parents, and children whose interests all intersect in the intercountry adoption process. 2. A succinct statement of the objectives of, and legal basis for, the proposed rule: The proposed rule supports many of the Department's policy goals. A primary consideration is making the accreditation rule as effective as possible in defining standards essential to protecting the safety and other interests of the participants in intercountry adoption. We aspire to implementing the lofty goals of the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (the Adoption Convention), which include in Article 1: To establish safeguards to ensure that intercountry adoptions take place in the best interests of the child and with respect for his or her fundamental rights as recognized in international law; and to establish a system of co-operation among Contracting States to ensure that those safeguards are respected and thereby prevent the abduction, the sale of, or traffic in children. The proposed changes to the accreditation rule focus on the individual participants in the process. But taking into account that even small changes in the regulations may have a significant impact, each proposed revision also contributes to preservation of intercountry adoption as a viable option for children in need of permanency the world over. The legal authority to engage in these proposed changes derives from our treaty obligations found in the Adoption Convention and as implemented by the Intercountry Adoption Act of 2000, the Intercountry Adoption Universal Accreditation Act of 2012, and the Secretary's responsibilities to support foreign policy interests of our nation found in the U.S. Constitution. Another objective of this proposed rule is to be responsive to the adoption community's calls for a different process for adoption by relatives, one that is faster and less costly, while maintaining essential safeguards to protect children and prospective adoptive parents. We share the community's desire to make intercountry adoption more accessible to relatives, which fits squarely into the Department's mission to support the viability of intercountry adoption for children in need as well. We are therefore proposing new relative adoption provisions, consistent with Section 502(a) of the Intercountry Adoptions Act (42 U.S.C. Chapter 143 sec. 14952(a)) (IAA Title V sec. 502(a)) relating to alternative procedures for the adoption of children by individuals related to them by blood, marriage, or adoption. 3. A description--and, where feasible, an estimate of the number-- of small entities to which the proposed rule will apply: The RFA defines a ``small entity'' as a small not-for-profit organization, small governmental jurisdiction, or small business. The RFA requires, with some exceptions, that agencies define small firms according to its size standards. SBA sets size standards by the number of employees or the amount of revenues for specific industries. These size standards are captured in the North American Industry Classification System (NAICS) codes. The work of intercountry adoption ASPs falls under the NAICS code 624110--Child and Youth Services. SBA's standard for a small business within this industry code is an entity with gross revenues of $11 million or less. Based off of public administrative data supplied by the ASPs themselves and the AE, the total number of entities subject to this rule is 118, as of June 2020. Of this total, 90 meet the SBA definition of small business entity. These firms are grouped based on gross revenues as follows: Gross receipts data were obtained from ASP public filings of IRS form 990, which non-profit organizations under section 501(c)(3) of the Internal Revenue Code are required to submit annually. Table 1--US Accredited/Approved Adoption Service Providers Grouped by Annual Gross Receipts, NAICS Code 624110 ---------------------------------------------------------------------------------------------------------------- Number of adoption Percentage of service small firms providers ---------------------------------------------------------------------------------------------------------------- Firms with Gross Receipts over $100M-$500M.................................... 3 N/A Firms with Gross Receipts over $11M-$100M..................................... 17 N/A Small Firms (Gross Receipts up to $11M)....................................... 90 100 Firms with Gross Receipts over $5M-$11M....................................... 12 13 Firms with Gross Receipts over $2M-$5M........................................ 17 19 Firms with Gross Receipts over $1M-$2M........................................ 16 18 Firms with Gross Receipts over $500K-$1M...................................... 19 21 Firms with Gross Receipts $500K and under..................................... 26 29 Firms for whom we have no financial data...................................... 8 N/A --------------------------------- Total U.S. Accredited and Approved ASPs................................... 118 ............... ---------------------------------------------------------------------------------------------------------------- Data for gross receipts were obtained from ASP public filings of IRS form 990, which non-profit organizations under section 501(c)(3) of the Internal Revenue Code are required to submit annually. The number of ASPs affected by this proposed rule making is very small. Agencies affected by this proposed rule typically provide child-related social services beyond intercountry adoption, though we understand some specialized exclusively in it. Of the ASPs engaged in intercountry adoption, most (112) are non-profit accredited agencies. Six ASPs are approved persons, which under the IAA are individuals, or for-profit entities. For the approved persons we have no financial data that would allow us to place them more accurately on Table 1. Two other agencies for whom we have no financial data are religious organizations not required to file IRS form 990, despite their classification as non- profit entities. It is our belief that they would fall within the scope of the small business rubric. The Department would appreciate receiving feedback about the groupings of ASP firms in this description. 4. A description of projected reporting, recordkeeping, and other compliance requirements of the proposed rule. Some of the provisions of [[Page 74500]] this rule relate to reporting and record keeping. All provisions apply equally to all parts of this group of small firms, but also to the non- small firms that make up the total number of accredited and approved agencies and persons. In Table 2, below, we summarize the impact of the proposed changes, including reporting and record keeping elements and our understanding of the average cost of implementing those provisions. 5. An identification, to the extent possible, of all relevant federal rules that may duplicate, overlap, or conflict with the proposed rule. To our knowledge, there are not relevant federal rules that duplicate, or conflict with, the proposed rule. Considering Alternative Approaches Relative Adoptions The relative adoption provisions illustrate how we approached considering alternative ways to address a need through this regulation. As previously noted, our objective in developing a new process for adoption by relatives was to reduce the cost and the time it takes to bring a relative adoption to a successful conclusion. Also important to us was a process that ASPs would find attractive for serving families with precious few options. Many relative cases arise in countries where there are no well-established intercountry adoption programs, and where few if any ASPs have expertise to work comfortably. We considered three approaches: 1. No change 2. A minimalist approach in which the primary provider was not required to provide any adoption services in the case, and 3. Sharing services between adoptive families and a primary provider. No change: We rejected the status quo as not acceptable as it achieved none of our goals for relative adoptions. We wanted a change the met the needs of the public and the ASPs and preserved key safeguards in relative cases. Minimalist approach: We looked at various ways of limiting the role of a primary provider in the case to verification of services only, relieving the Primary Provider of the obligation of providing any services, or supervising the provisions of adoption services in the case. We rejected this very minimalist approach and the variations on the minimalist theme we considered because even though they might be cheaper for ASPs and PAPs than the proposed approach, the heightened risks to children, birth families, and adoptive families inherent in a very highly curtailed role for the primary provider were unacceptable. Taking the minimalist road would allow too much influence by unscrupulous foreign providers on family members and putting them in the way of corrupt officials without allowing for a modicum of oversight. Sharing services: The proposed approach, in which families may provide certain services themselves instead of ASPs, leaving other services to be provided by a primary provider in the case, balances protecting against risks while promoting an efficient and cost- effective process for families. We are requiring the ASP primary provider to provide the home study and the post placement services. These services are the bedrock of social services in our regulations. Accredited ASPs have deep capacity to provide these services independent of special cultural knowledge or foreign bureaucratic know how. Permitting this division of labor in relative adoption cases plays to the strengths of both PAPs and ASPs. And it will reduce the time the ASP must spend on the case and the cost of their work on the case by limiting its scope. Reducing the cost to families will have the additional benefit of encouraging families to consult with a U.S. adoption professional sooner as the case gets underway and thereby avoid pitfalls that result from calling them in at the very tag end of the case. In this instance, the approach we landed on was not the very least costly option, but it will mean significant savings to ASPs and adoptive families alike, while building in effective controls on risks. Segregation of Client Funds Our objective was to preserve unspent client funds so that they would be available when needed. We have observed and adoptive families have complained loudly when this occurs, that when an ASP is called upon to transfer cases to other agencies for completion (for a wide variety of possible reasons) sometimes those funds are no longer available. In the case of an ASP that has been suspended or lost its accreditation, the ASP is required to implement its case transfer plans, including transferring client funds not yet expended in the client's case. If the ASP was asked to transfer cases and its own finances are in disarray it may be that the coffers are now empty and the client must struggle to force the ASP to return funds or must proceed with the in-progress adoption case with another agency and must need to pay additional fees to do so. We wanted to help prospective adoptive families with a revision to the rule that will put them on protected footing. There were a range of possible solutions: 1. No change, but work to educate families and ASPs about how to avoid this situation, 2. Imposing highly formalized fiduciary funds physical separation from the agency's funds process (similar to how most law firms do it), or 3. Requiring the segregation without specifying how the ASP should accomplish it, but build in reporting and AE oversight. No change: The concept of separation of client funds from other client funds and ASP funds is not new and has been the subject of at least one law suit in which the court caused an ASP to lose its state license to provide adoption services for comingling client funds with its own. We were concerned that just talking about it and not tying it to some form of accountability would not invigorate enough ASPs to make needed changes. We wanted a solution that promised results. Holding unspent client funds in an escrow account: Physical separation of client from agency funds in an escrow fund managed by a financial institution had its obvious attractions. While producing the highest level of protection for the adoptive families, this was also the most expensive option as most escrow accounts have fees associated with them and may involve administrative hassles to access protected funds on short notice. We liked the level of protection but the cost, especially if multiplied across all clients, was prohibitive. Choose your own solution subject to AE verification and adverse action if you fail to put into place effective segregation of funds: In our interaction with ASPs we learned that there were many possible ways of effectively segregating client funds that reflect ASP management style, financial sophistication, and workforce savvy and budgetary solvency. This solution gave the ASP the greatest leeway to decide which method it preferred while creating accountability for protecting unspent client funds. Potential low cost and increased accountability. Creating Greater Transparency of Fees Charged by ASPs On several levels, adoption-related fees are a source of friction, competition, and confusion within the adoption community at large. There are many who criticize ASPs for charging high adoption fees. Countries of origin raise this matter with us bilaterally when we speak with them in private, complaining that they don't understand why the fees are so high and what the [[Page 74501]] funds are used for. To address these concerns and to create greater transparency for prospective adoptive parents, we wanted to propose a change to how ASPs disclose their fees. The options we considered were: 1. No change, 2. Create a form that ASPs would be required to use to provide a detailed list of information in a uniform manner with strong penalties for failure to conform, and 3. A hybrid approach somewhere between options (a) and (b). No change: The cheapest option by far. It also does not improve transparency and accountability if we do nothing. Create a draconian list of detailed fee information linked to strong sanctions for failure to comply: This option envisions forcing all ASPs to provide the exact kind of information and to the same level of detail for each country in which the offered adoption services and with strict consequences for noncompliance. Some agencies would favor this approach because it would force a level playing field for ASPs. Some are reluctant to reveal the details of their fees because the don't want to be ``outbid'' by other ASPs. Others do not want to be pinned down to exact fee levels because they want flexibility to keep up with local conditions. Yet others have used their published fees to provide camouflage for questionable fee practices. This approach is more akin to a licensing context, in which all ASPs must demonstrate the same high level of compliance to retain their license. Our system, by contrast, is an accreditation model in which APS have more leeway to demonstrate conformance with standards of practice and may also have acceptable levels of compliance short of perfect compliance. We wondered if some agencies would resist compliance to highlight this essential difference between the two models. A hybrid approach: As we fleshed it out, we found that it offered greater transparency for adoptive families, other ASPs and countries of origin alike. It provided a framework for increasing the number of fee particulars that was scalable depending on the kind of intercountry adoption program your agency had, reflecting the complexity of adoptions in specific countries and allowing for streamlining information where appropriate. The key to success, we thought, would lie in getting the main categories right and separating the information in terms of where the service takes place, rather than under general headings of foreign program or domestic program fees. To mitigate the cost of implementation, we envisioned keeping the number of fees to report to a list larger than the status quo but not so detailed as to make conforming with a disclosure requirement too costly to launch or difficult to keep up to date. Calculating Staff Worker Hourly Rates Using the most recent edition of Bureau of Labor Statistics (BLS) Occupational Employment Statistics (OES),\2\ we obtained several estimates for social workers ranging from about $24 per hour (as an average national wage rate) to nearly $30 per hour. We went a step further and found the average (mean) of the hourly rate for each state in the category ``Social Workers, All Other,'' as reported in the State by State data sets for OES code 21-1029 of May 18, 2018,\3\ the most recent data set available. On this basis, we arrived at an average national hourly rate of $30.12, which for ease of calculating we rounded to $31. --------------------------------------------------------------------------- \2\ https://www.bls.gov/oes/. \3\ https://www.bls.gov/oes/2018/may/oes211029.htm. --------------------------------------------------------------------------- In a similar manner, we captured national wage rates for other staff and management workers from the BLS OES Data sets, including: (1) Financial Managers,\4\ $70.59/hour (rounded to $71), whose duties include to plan, direct, or coordinate accounting, investing, banking, insurance, securities, and other financial activities of a branch, office, or department of an establishment; --------------------------------------------------------------------------- \4\ https://www.bls.gov/oes/2018/may/oes113031.htm. --------------------------------------------------------------------------- (2) Bookkeeping, Accounting, and Auditing Clerks,\5\ $20.25/hour (rounded to $21), whose duties may include to compute, classify, and record numerical data to keep financial records complete; to perform any combination of routine calculating, posting, and verifying duties to obtain primary financial data for use in maintaining accounting records; and to check the accuracy of figures, calculations, and postings pertaining to business transactions recorded by other workers; --------------------------------------------------------------------------- \5\ https://www.bls.gov/oes/2018/may/oes433031.htm. --------------------------------------------------------------------------- (3) Auditors,\6\ $37.89 (rounded to $38), whose duties include to examine, analyze, and interpret accounting records to prepare financial statements, give advice, or audit and evaluate statements prepared by others; and --------------------------------------------------------------------------- \6\ https://www.bls.gov/oes/2018/may/oes132011.htm. --------------------------------------------------------------------------- (4) Training and Development Specialists,\7\ $31.31 (rounded to $32), whose duties include to design and conduct training and development programs to improve individual and organizational performance. They may also analyze training needs. --------------------------------------------------------------------------- \7\ https://www.bls.gov/oes/2018/may/oes131151.htm. --------------------------------------------------------------------------- The Department requests public comment on the method used to estimate the cost of compliance with the amendments to this regulation, including the estimates of compensation noted here. Table 2--Summary of Cost Data in Appendix A to the Preamble [Each item in this summary and in Appendix A is numbered for ease or comparison. The numbered items refer to the items in the Preamble narrative.] ------------------------------------------------------------------------ ------------------------------------------------------------------------- Projected Implementation Costs for Small Firms ------------------------------------------------------------------------ Year 1 Costs For Each Small Firm: Average Cost in the First Year: $14,165. Costs For Each Small Firm in Subsequent * Years: Average Cost in Subsequent Years: $5,274. * For more information on subsequent year average costs and the services with which they are associated, see the bottom of this table. ------------------------------------------------------------------------ Total Projected Implementation Costs for All Firms Regardless of Size ------------------------------------------------------------------------ Year 1 Costs For All Firms Taken Together: Average Cost in the First Year: $1,558,095. Costs in Subsequent Years for All Firms Taken Together: [[Page 74502]] Average Cost in each Subsequent Year: $580,085. ------------------------------------------------------------------------ Average first year $ Average year 1 $ Average first year $ costs for all ASP costs for 1 small costs for all small firms regardless of firm ASP firms size ---------------------------------------------------------------------------------------------------------------- 1. Preamble II-A-1, Subpart R, Sec. Sec. Reduction in Costs Reduction in Costs Reduction in Costs 96.100-96.101, Adoption by Relatives. Expected. Expected. Expected. 2. Preamble II-B-1, Sec. 96.43 and 96.94, 93.................. 8,370............... 10,230. Additional data points to report in the event of a disruption or dissolution. 3. Preamble II-C-2, Sec. 96.36(a), Prohibits 610................. 54,900.............. 67,100. payment of expenses for a specific child or as an inducement to release a child for adoption. 4. Preamble II-C-3 Initial Year, Sec. 1,766............... 158,895............. 194,205. 96.36(b), Requires policies and procedures prohibiting the sale of children and incorporates in an employee training. 4. Preamble II-C-3 Subsequent Years........... See Table Below..... 5. Preamble II-C-4 Initial Year, Sec. 96.34, 731................. 65,745.............. 80,355. No incentive or contingent fees or plans to compensate formally or informally for locating or placing children. 6. Preamble II-C-5 Initial Year, Sec. 96.40, 2,123............... $191,025............ 233,475. Expanded categories of estimated fees and expenses in the United States and abroad associated with an intercountry adoption. 6. Preamble II-C-5 Subsequent Years........... See Table Below..... 7. Preamble II-C-6 Initial Year, Sec. 1,020............... 91,755.............. 112,145. 96.40(c)(4)(i), Prohibits regular payments for care of a particular child, unreasonably high fees, and fees based on a period of time it takes to complete adoption. 8. Preamble II-C-7 Initial Year, Sec. 427................. 38,385.............. 46,915. 96.46(b)(7) and (8), Prohibits direct payments to foreign supervised providers. Fees for FSPs paid by the ASP not PAPs. 9. Preamble II-C-8 Initial Year, Now located 1,880............... 169,200............. 206,800. in Sec. 96.40(f), Holding Unspent Client Funds Separate from ASP Operating Funds. 9. Preamble II-C-8 Subsequent Year............ See Table Below..... 10. Preamble II-D-1 Initial Year, Sec. 731................. 65,745.............. 80,355. 96.50(c) through (h), Provides increased detail on post placement monitoring, notification requirements and time frames for notification when adoption is in crisis. 11. Preamble II-D-2, Sec. 96.51(b), 731................. 65,745.............. 80,355. Addressing post adoption services in the ASP- PAP service agreement; returning child to COO. 12. Preamble II-E-1, Sec. 96.41, ASPs accept 731................. 65,745.............. 80,355. all written complaints. 13. Preamble II-F-1, Sec. 96.54(a), Outgoing Not possible to Not possible to Not possible to Cases--Removes the provisions on birth parent- determine. determine. determine. selected PAPs. ASPs make reasonable efforts to find a timely U.S. adoptive placement. 14. Preamble II-F-2, Sec. 96.54(d)(2), 731................. 65,745.............. 80,355. Diligent Efforts to place siblings together. 15. Preamble II-G-1, Sec. 96.32(c), Retain 610................. 54,900.............. 67,100. board meeting records and records about supervised providers, financial transactions with foreign countries for 25 years. 16. Preamble II-G-2, Sec. 96.32(e)(4), ASP 610................. 54,900.............. 67,100. discloses to the AE orgs that share with it any leadership, officers, boards or family relationships and whether it provides services to or receives payment from the agency or person. 17. Preamble II-I-1, Sec. 96.25(c), 62.................. 5,580............... 6,820. Deliberate destruction of documentation or provision of false or misleading information. 18. Preamble II-I-2, Sec. 96.37(c), Training Not possible to Not possible to Not possible to topics for social service personnel may be determine. determine. determine. waived due to training or experience. 19. Preamble II-I-3, Sec. 96.38(b), Topics 610................. 54,900.............. 67,100. relating to intercountry adoption about which agency social service personnel require training. 20. Preamble II-I-4, Sec. 96.38(d), 93.................. 8,370............... 10,230. Exemption from training for newly hired social service staff in certain circumstances. 21. Preamble II-I-5, Sec. 96.47(e), 610................. 54,900.............. 67,100. Procedures for withdrawal of home study approval. ---------------------------------------------------------------------------------------------------------------- Average Additional Costs in Subsequent Years ---------------------------------------------------------------------------------------------------------------- 4. Preamble II-C-3 Subsequent Years Average $2,772.............. $249,480............ $304,920. Costs. 6. Preamble II-C-5 Subsequent Year Average $2,601.............. $185,445............ $226,655. Costs. 9. Preamble II-C-8 Subsequent Year Average $441................ $39,690............. $48,510. Costs. ----------------------------------------------------------------- Total Average Costs for Subsequent Years.. $5,274.............. $474,615............ $580,085. ---------------------------------------------------------------------------------------------------------------- [[Page 74503]] Table 3--Revenue Test for Accredited or Approved Adoption Service Providers (NAICS Code 624110)--$11 Million Small Firm Size Standard--Cost of Implementation as a Percentage of Gross Annual Receipts -------------------------------------------------------------------------------------------------------------------------------------------------------- Average $ cost Average annual Number of % of small Average $ cost Revenue test per firm in Revenue test Firm Size (by gross receipts) $ receipts firms firms per firm in (%) subsequent (%) first year years -------------------------------------------------------------------------------------------------------------------------------------------------------- Firms with Receipts from $100M up to 150,638,293 3 N/A 14,103