AAC Comments

Comments of the American Adoption Congress Concerning Standards and Regulations
to Implement the Intercountry Adoption Act

April 6, 2001

The American Adoption Congress (AAC) appreciates this opportunity to submit its comments concerning regulations and standards to be promugated under the Intercountry Adoption Act ("the Act"), which in turn implements the Hague Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption ("the Convention").

The AAC, founded in 1978, is a national volunteer organization whose members are adoptees, adoptive parents, birth parents and adoption professionals committed to adoption reform. Through education and advocacy, we promote honesty, openness and respect for family connections in adoption.

The AAC and its members have no financial interest in adoption.

The principal purpose of the Convention is "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" (Art. 1a).

The principal purpose of the Act is "to protect the rights of, and prevent abuses against, children, birth families and adoptive parents involved in adoptions (or prospective adoptions) subject to the Convention and to ensure that such adoptions are in the children's best interests" (Sec. 2(b)(2)).

The regulations and standards under the Act must implement these purposes and be governed by them. In particular, these purposes should dictate both the methods and the substantive standards of accreditation and approval. (We will use "accreditation" hereafter to cover both functions.)

A. Accreditation Procedures

Since the primary purposes of the Act are to protect rights and prevent abuses, accreditation implementing the Act should focus on results, i.e., services actually rendered to adoptive parents and prospective adoptive parents, not on processes and certainly not on paperwork. In particular, we suggest that the core procedures should be as follows:

1. The provider seeking accreditation should provide a complete list of clients (i.e., adoptive parents and prospective adoptive parents) with whom the provider has dealt in a recent time period. The accrediting entity should then question a random sample of these clients concerning the quality of services delivered by the provider. The provider would notify all such clients that they may be contacted by the accrediting entity and should speak freely and frankly (such notification should commence immediately to all existing and new clients); all information obtained by the accrediting entity would be held in confidence to be used solely for the purposes of accreditation. Deliberate omission of any clients required to be included would be grounds for denying accreditation.
   
    
2. The accrediting entity should examine all complaints received by the provider (including resolved complaints) and investigate them in whatever degree is appropriate.
   
    
3. The accrediting entity should examine all complaints concerning the provider received by the state agencies that license the provider and by administrative agencies authorized to receive consumer complaints concerning the provider. The accrediting entity should again investigate as appropriate.
   
    
4. Records of any pending or resolved lawsuits against the provider should also be reviewed.

As a condition of accreditation, providers should be required to waive any confidentiality requirements that were created or imposed in order to protect the provider.

Accreditation in other contexts (e.g., education, hospitals) is often a collegial exercise intended to improve performance generally. Accreditation to implement the Act and the Convention, however, is a "safeguard to ensure that intercountry adoptions take place in the best interests of the child" and to protect rights and prevent abuses of clients. It must enforce minimum standards. Encouraging "best practices" may be generally desirable, but it is not a purpose of the Act or the Convention.

Paperwork exercises such as self-evaluation reports and exhaustive examinations of recordkeeping should be avoided, except to the extent required by Section 203(b)(1)(D) of the Act. Such exercises burden providers without furthering the purposes of the Act or the Convention. Such exercises also discriminate against smaller providers, regardless of their quality. Quality is best determined by examining results.
 

B. Accreditation and Approval Standards

1. Responsibility for Agents. The statutory purpose of protecting adoptive parents and children requires that providers be fully responsible for all persons that assist them (especially those whom they pay), whether denominated "independent contractors," "facilitators," or any other term. If a provider's agent commits fraud, concealment or simply negligence, the impact on an adoptive parent or a child is the same, regardless of how the agent is designated. If it is clear that providers will be responsible for agents, providers will see to it that their agents are reliable. The providers' responsibility must encompass both actions and knowledge. Providers should be presumed to know whatever their agents know; if that is done, providers will insist on communication from their agents and will not rely on those whom they cannot trust.
   
    
2. Medical Records. The Act requires providers to provide to prospective adoptive parents "a copy of the medical records of the child (which to the fullest extent practicable, shall include an English-language translation of such records)" at least two weeks before the adoption or before the adoptive parents travel to the country of origin, whichever is earlier (Sec. 203(b)(1)(A)(i)). The standards should be explicit that all medical information known by or available to the provider or its agents is included. This must include the report prepared by the country of origin pursuant to Article 16a of the Convention, particularly as it concerns family and medical history and special needs of the child. The records of disrupted adoptions should be examined with care to see that all required information was timely provided in English to the adoptive parents.
   
    
3. Home Studies. Home studies must include all relevant information, unfavorable as well as favorable. Deliberate omission of any unfavorable information should be grounds for denying accreditation. The records of disrupted adoptions should be examined with care to see that no such omissions occurred.
   
    
4. Fee Restrictions. Section 203(b)(1)(A)(iv) of the Act requires personnel providing intercountry adoption services to be compensated on a fee-for-service basis rather than a contingent fee basis. The accreditation standards should be explicit that this requirement applies to all personnel paid by the provider, whether they are called employees or independent contractors or something else. The standards should make clear that "fee-for-service basis" means payment by the hour or by the task.
   
    
5. Other Required Disclosures. Section 203(b)(1)(A)(v) of the Act requires each provider to disclose "fully its policies and practices, the disruption rates of its placements for intercountry adoption, and all fees charged by such [provider] for intercountry adoption." The standards should set a uniform format for all such disclosures to facilitate comparisons among providers. The standards should define disruption, specify the method for calculating disruption rates, and specify the format for disclosing such rates. So far as practicable, the standards should specify the format, categories and language of fee disclosures. No last minute fee increases, baby auctions or large overseas cash payments should be allowed. Such practices have been frequent in the past.
   
    
6. Training and Counseling. Section 203(b)(1)(A)(iii) requires providers to supply pre-adoption counseling and guidance. Accreditation standards should also require providers to continue counseling and support after the adoption; experience has shown that success in intercountry adoptions requires such support to help adoptive families cope with the special problems of intercountry adoption. Section 205 of the Act requires states to provide post-adoption services for intercountry adoptees.
   
    
7. Adoptions from the U.S. Section 303(a)(1)(B) requires that before a provider may arrange for a U.S. resident child to be adopted abroad, the provider must have been unable timely to place the child for domestic adoption, despite having "made reasonable efforts to actively recruit and make a diligent search for prospective adoptive parents … in the United States." The regulations should define what is "timely" in this context and should specify minimum recruitment and search efforts. The accreditation process should verify that such efforts have been made unsuccessfully in every case where a U.S. child has been adopted abroad.

C. Acton Burnell's Procedures

We are concerned that Acton Burnell and the State Department have reached out to, consulted with and considered primarily the interests of adoption providers. The "team" and "panel" are dominated by persons previously associated with providers, associations of providers and the Council on Accreditation (which seeks an accrediting role). We understand that personnel from Acton Burnell and the State Department have met with organizations dominated by providers, such as the Child Welfare League, the Joint Council on Intercountry Adoptions and the Advisory Council on Intercountry Adoptions, but not with organizations of triad members. The "survey" initially posted by Acton Burnell on its web site was directly almost entirely to adoption providers. The web site page directed to adoptive parents and adoptees was created only after Mr. Greenman pointed out to Ms. Stricklett the apparent absence of participation by or consideration of organizations of adoptive parents and adoptees.

We are also concerned about the explicit refusal of Acton Burnell and the State Department to circulate any preliminary drafts of standards and regulations for comment prior to the Federal Register publication of a regulation for APA notice and comment procedure. The meeting on April 2 demonstrated the abuses and tragedies that the Act and the Convention seek to prevent, and also demonstrated the intensity of some of the conflicts inherent in this task. Acton Burnell and the State Department will be making a major mistake and precipitating an unnecessary controversy if they do not circulate proposed regulations and standards widely so as to obtain input from those whom the Act and the Convention are intended to protect.