DOS: FAQ Foreign Providers for Incoming Adoption Cases

From here:
“FAQ: Foreign Providers for Incoming Adoption Cases- Supervision versus Verification
Last Updated: January 6, 2021

The following FAQ: Foreign Providers for Incoming Adoption Cases- Supervision versus Verification is available on our website, in the For Adoption Professionals section.

FAQ: Foreign Providers for Incoming Adoption Cases- Supervision versus Verification

This FAQ explains various elements of 22 CFR § 96.46, including the requirements of supervision and verification, in response to requests for clarification from adoption service providers and the Accrediting Entity. This complements existing guidance on supervising foreign providers on the Department’s website and incorporates the October 2017 FAQ on Foreign Supervised Providers.

General questions and responses from the October 2017 FAQ are indicated with an asterisk* if they are unchanged and indicated with two asterisks** if they are updated.

Please also see the Foreign Supervised Provider Country-Specific Information page, which consolidates information previously provided in public notices or by email in response to specific inquiries from adoption service providers.

Relevant Regulatory References:

22 CFR § 96.2 – Definitions

22 CFR § 96.6 – Performance criteria for designation as an accrediting entity

22 CFR § 96.7 – Authorities and responsibilities of an accrediting entity

22 CFR § 96.12 – Authorized adoption service providers

22 CFR § 96.14 – Providing adoption services using other providers

22 CFR § 96.25 – Access to information and documents requested by the accrediting entity

22 CFR § 96.27 – Substantive criteria for evaluating applicants for accreditation or approval

22 CFR § 96.32 – Internal structure and oversight

22 CFR § 96.35 – Suitability of agencies and persons to provide adoption services consistent with the Convention

22 CFR § 96.36 – Prohibition on child buying

22 CFR § 96.44 – Acting as a primary provider

22 CFR § 96.45 – Using providers in the United States

22 CFR § 96.46 – Using providers in foreign countries

Question 1: What is the purpose of the adoption regulations that require adoption service providers (ASPs) to meet certain standards when using providers in a foreign country?

Response: 22 CFR Part 96 provides the regulatory framework for the accreditation and approval of agencies and persons pursuant to the Intercountry Adoption Act of 2000 (IAA). These regulations help to ensure that the rights of birth families, children, and prospective adoptive families are appropriately safeguarded and also implement other goals and requirements of the IAA and the Intercountry Adoption Universal Accreditation Act of 2012 (UAA). The need to safeguard the rights of these three parties, in the United States and abroad, is reflected throughout the regulations. 22 CFR §§ 96.35, 96.36, and 96.44 intersect with the issue of using providers in a foreign country, which is specifically addressed in 22 CFR § 96.46. 22 CFR § 96.46 requires ASPs to either supervise foreign providers or to verify certain aspects of their work, unless stated exemptions apply.

Question 2: Why are supervision and verification of adoption services performed by others in a foreign country so important?

Response: In the Preamble to the 2006 22 CFR Part 96 Final Rule, the Department acknowledged that it can be difficult to police unethical adoption practices in countries of origin. Nevertheless, in line with the purpose of the IAA to protect the rights of and prevent abuses against children, birth families, and adoptive families, 22 CFR § 96.46 sets out standards that an ASP must follow in supervising or verifying the work of providers in other countries. These include ensuring that such foreign providers do not engage in practices inconsistent with the Convention’s principles of furthering the best interests of the child and preventing the sale, abduction, exploitation, or trafficking of children. An ASP acting as the primary provider in a intercountry adoption case should, therefore, exercise care in selecting foreign providers and will need to supervise their work (22 CFR § 96.46 (a)-(b)), and should exercise care when performing their verification responsibilities (22 CFR § 96.46 (c)). The Department believes that compliance with 22 CFR § 96.46 (a)-(c) will help ensure primary providers’ proper monitoring of supervised providers or verification of other foreign providers’ work and will help protect children and birth families.

Question 3: What is the difference between supervision and verification?

Response: In general, an ASP is responsible for supervising a foreign provider when the foreign provider is providing adoption services while the ASP is acting as a primary provider. This means the ASP is responsible for appropriately supervising any services provided from the time the ASP becomes the primary provider until the case concludes.

When an ASP becomes the primary provider in a case where certain adoption services (those relating to consents, child background studies and home studies) have already been provided , the ASP is responsible for verifying that the foreign provider provided those services in accordance with applicable foreign laws and articles of the Convention. The ASP must also verify these services if the foreign provider had started but not concluded those services at the time the ASP became the primary provider. The primary provider must verify the services ethically and in accordance with the Convention’s principles, as outlined in 22 CFR § 96.35(a).

The ASP is not liable for the actions of other providers, but if the ASP cannot verify the foreign provider’s satisfactory performance, the ASP acting as primary provider would otherwise need to provide the relevant services in compliance with the accreditation regulations, i.e. correct or supervise the correction of services provided by a foreign provider that it cannot verify.

Question 4: Why are there two different standards (i.e. verification and supervision)?

Response: The verification requirement in 22 CFR § 96.46 (c) recognizes that as a practical matter, a primary provider will not be able to supervise contemporaneously all adoption services that might occur in a country. A limited number of adoption services may have been performed before identification of a primary provider. In an incoming case (child immigrating to the United States), the consents to adoption and child background study are likely to have been prepared before an intercountry adoption to the United States is specifically contemplated. In an outgoing case (child emigrating from the United States), the home study will often have been prepared before the prospective adoptive parent(s) determine that they wish to pursue an intercountry adoption from the United States. To avoid requiring that such services be performed or repeated under supervision, which could potentially create additional costs and delays that may not be in the best interest of children and families, the standard set forth in 22 CFR § 96.46 (c) requires the primary provider to verify that these adoption services, when provided by private, non-governmental providers, were performed in the country consistent with the requirements of the Convention and any other applicable local law.

Question 5: What does it mean to “provide” an adoption service?

Response: Provision of an adoption service is defined in the Intercountry Adoption Act of 2000 (IAA) to include facilitating the provision of the service. Therefore, anyone facilitating the provision of an adoption service is providing that adoption service. In general, a person or organization is providing an adoption service any time that they take an action or otherwise have a role, direct or indirect, in the performance of the adoption service. These activities may include, but are not limited to:

preparing a document, unless doing so constitutes a legal service as defined in 22 CFR § 96.2
advancing the interests of one or more of the individuals involved in the adoption with a competent authority
making a payment, if the action contributes to the completion of an essential aspect of one of the adoption services

It is important to note that it is the provision of adoption services, not an individual’s job title that determines whether someone must be accredited or approved or otherwise supervised or exempted.

Question 6: How does an ASP determine whether the foreign provider they are working with needs to be supervised (in accordance with 22 CFR § 96.46(a)-(b)), or if their work can be verified (in accordance with 22 CFR § 96.46(c))?

Response: If the foreign provider is providing or facilitating the adoption service(s) while the ASP is acting as the primary provider, as mentioned above, the ASP must supervise their work in accordance with 22 CFR § 96.46(a) and (b), unless they are a Central Authority, competent authority, or public foreign authority, or otherwise are exempt from supervision.

If the foreign provider has performed or has started but not concluded performing a service that qualifies for verification under 22 CFR §§ 96.14(c)(3) and 96.46(c) (consents, child background studies, and home studies), then the ASP must verify those services unless the services are not subject to verification because they were directly performed by a Central Authority, competent authority, or public foreign authority.

Question 7: Does visa issuance for an adopted child in a case mean the ASP was in compliance with supervision and verification of foreign provider requirements, as well as other accreditation regulations?

Response: Consular officers in the child’s country of origin adjudicate visa applications. The Accrediting Entity assesses an ASP’s compliance with the accreditation regulations in Subpart F of 22 CFR Part 96. The laws and regulations that govern different types of immigrant benefits, including visa and petition processing, are a different set of standards meant to determine a child’s eligibility for such benefits under U.S. immigration law. ASPs should not assume the Accrediting Entity will find them to be found in compliance with accreditation standards based on the consular officers decision to issue a visa to an adopted child. If the concerns about an ASP’s compliance with the accreditation regulations to not impact the child’s eligibility to immigrate, the consular officer does not necessarily need to delay visa adjudication.

Question 8: What counts as due diligence for case transfers and how does it relate to supervision and verification?

Response: Conducting due diligence when accepting or considering accepting a transferred case is a process that helps ensure that the ASP will be in compliance with the standards in Subpart F, including being in compliance with applicable laws (22 CFR § 96.27(g)) and providing adoption services ethically and in accordance with the Convention’s principles (22 CFR § 96.35(a)) for any transferred case it accepts. Due diligence may include consideration of the requirements to supervise (22 CFR § 96.46(a)-(b)) and/or to verify (22 CFR § 96.46(c)) services provided by another provider, as well as other considerations explained in the April 2018 public notice on case transfers. If a Central Authority, competent authority, or public foreign authority directly performed the adoption service, supervision or verification is not required.

In accepting a case transfer, the ASP is responsible for ensuring that its actions as the new primary provider meet the accreditation regulations’ requirements. The ASP should, therefore, exercise due diligence for ensuring that the case meets the standards of Subpart F, for correcting any compliance issues before allowing the case to proceed (assuming the potential placement continues to be in the child’s best interest), and for its actions as the new primary provider. The new ASP is not responsible for the actions of the previous ASP prior to accepting the case. However, as explained above, the ASP is responsible for properly providing certain services (consents, child background studies, and home studies) when those services were provided by a foreign provider and the ASP cannot verify the foreign provider’s satisfactory performance in accordance with 22 CFR § 96.46(c).

Exercising due diligence should include, but is not limited to, reviewing the prospective adoptive parents’:

overall eligibility to adopt from the country where they have applied,
pre-adoption education and preparation,
home study, and
suitability to parent the child with whom they are matched (if the prospective adoptive parents have been matched with a child).

The Department also strongly recommends that ASPs considering the acceptance of a case transfer for which they will become the new primary provider thoroughly review the child’s medical and social background information, and all the underlying documentation that helped determine the child’s eligibility for intercountry adoption.

In addition, if an ASP is asked to take on another ASP’s foreign providers as part of the case transfer process, the Department strongly encourages a thorough review of their credentials and suitability, like an ASP would for any new foreign provider. Likewise, if an ASP is considering utilizing the services of a formerly accredited ASP as a supervised provider, the Department strongly encourages a thorough review of their suitability for that role under applicable regulations, including 22 CFR §§ 96.35, 96.44, 96.45, and 96.46.

The following resource provides additional, helpful information about due diligence: Guidance for Adoption Service Providers Helping Families Affected by Their Original Primary Provider’s Relinquishment or Loss of Accreditation

Question 9: If 22 CFR § 96.46(a)-(b) does not apply, what do I need to verify for 22 CFR § 96.46(c) and when?

Response: According to 22 CFR § 96.46(c), the primary provider must verify that: “(1) Any necessary consent to termination of parental rights or to adoption obtained by the foreign provider was obtained in accordance with applicable foreign law and Article 4 of the Convention. (2) Any background study and report on a child in a case involving immigration to the United States (an incoming case) performed by the foreign provider was performed in accordance with applicable foreign law and Article 16 of the Convention. (3) Any home study and report on prospective adoptive parent(s) in a case involving emigration from the United States (an outgoing case) performed by the foreign provider was performed in accordance with applicable foreign law and Article 15 of the Convention.”

The primary provider must verify that these three adoption services, when provided by private, non-governmental providers, were performed consistently with the requirements of the Convention and any other applicable local law. In many countries, all three of these services will be directly performed by a Central Authority, competent authority, or public foreign authority, which are not subject to the supervision or verification requirements under 22 CFR § 96.46.

Question 10: What does it mean to “verify” according to 22 CFR § 96.46(c) and what does “other appropriate steps” mean with regard to verification?

Response: Verifying means confirming that the activities referenced in 22 CFR §96.46(c) were performed in accordance with relevant laws. “Other appropriate steps” are actions that go beyond a paper-based review that enable the ASP to verify the foreign provider’s satisfactory performance and may involve actions to confirm the information in the country where it originated. This could include interviews, site visits, etc., and could involve working through local representatives or contracting third parties. Appropriate steps may differ by case and by country. For example, there may be more steps in the verification process for a case where there are significant inconsistencies in the child’s background study, as additional actions may be appropriate to reconcile and verify the information. In contrast, a case with no obvious inconsistencies may require fewer steps to verify the information as part of the “other appropriate steps.” Likewise, the “other appropriate steps” used to verify an abandonment case may differ slightly from the “other appropriate steps” used to verify a relinquishment case in which verification of consent is required. In addition, in some countries, there are multiple private entities involved in providing the child background study and report, and in other countries, there is only one private entity.

Question 11: What is the primary provider’s responsibility when adoption services were provided in a case prior to the ASP’s involvement?

Response: According to 22 CFR § 96.14(a), accreditation and approval require that, in each intercountry adoption case, “an accredited agency . . . or an approved person will be identified and act as the primary provider. […] If just one accredited agency or approved person is involved in providing adoption services, the sole accredited agency . . . or approved person must act as the primary provider.”

If more than one ASP is providing adoption services in a case, the ASP that has child placement responsibility, as determined by the evidence identified in 22 CFR § 96.14(a), must act as the primary provider throughout the case.

Keep in mind that:

Prospective adoptive parents sometimes engage a primary provider late in the intercountry adoption process when some or all of the adoption services in a case have already been completed. In these cases, the primary provider will generally need to confirm many aspects of the case’s history, including determining which adoption services were provided in the case and whether they were performed in accordance with applicable laws and regulations and were consistent with the best interests of the child. This may entail reviewing available documentation, inquiring with earlier providers, and taking other reasonable measures, as appropriate. A primary provider will need to provide adoption services, if there are any remaining adoption services to be provided– such as arranging the adoption for the identified child, determining that the adoptive placement is appropriate and in the best interest of the child, and conducting post-placement monitoring – ethically and in accordance with the Convention’s principles, as outlined in 22 CFR § 96.35(a).

The primary provider is responsible under 22 CFR § 96.46(c) for verifying, through review of relevant documentation and other appropriate steps, that a foreign provider’s performance with respect to obtaining necessary consents, the child background study and report (incoming cases, and the home study and report on the prospective adoptive parents (outgoing cases), was performed in accordance with applicable foreign law and relevant articles of the Convention.

Question 12: How are ASPs supposed to implement the verification standard (22 CFR § 96.46(c)(1)-(2)) in Convention countries?

Response: In many countries, obtaining necessary consents and/or performing child background studies will be done directly by Central Authorities, public foreign authorities, or competent authorities. Such authorities are not subject to the verification requirements in 22 CFR § 96.46(c)(1)-(2). As always, an ASP’s obligations under 22 CFR § 96.35(a) remain in place, including as regards information that may contradict the Article 16 report issued by a Central Authority. Such information should be brought to the Central Authority’s attention for resolution.

In other Convention countries, a foreign provider will have obtained the necessary consents or performed a child background study. In these cases, in accordance with Article 16 of the Convention, a Central Authority will prepare a report on the child and should ensure that such consents were obtained in accordance with Article 4 of the Convention. The Article 16 report includes the Central Authority’s report on the child and “proof that the necessary consents have been obtained,” among other things. Absent information that raises questions about compliance with the requirements of Articles 4 and 16, the Article 16 report will generally suffice as evidence of meeting the verification standard. However, if new or contradictory information is or becomes known to the ASP that raises questions or doubts relating to 22 CFR § 96.46(c)(1)-(2) activities, the ASP should exercise due diligence to verify such activities, consulting with the Central Authority as needed to resolve the issues.

Question 13: If an ASP takes a case in a country in which they have not previously worked and where the ASP does not have an established program, how do they verify the required information?

Response: The guidance above is applicable for all cases, including one-time cases or cases undertaken outside of a formal program. Adoption service providers may engage third parties in their verification efforts, as mentioned in the response to Question 10 above.

Question 14: Can the State Department change the terminology of Foreign Supervised Provider to Foreign Service Partner? The word “supervision” sometimes causes confusion or offense in the sending country.

Response: The reference to supervision stems from the laws that implement the Convention and govern intercountry adoption in the United States. Section 201(a) of the Intercountry Adoption Act of 2000 (IAA) states, “no person may offer or provide adoption services in connection with a Convention adoption in the United States unless that person—(1) is accredited or approved in accordance with this title; or (2) is providing such services through or under the supervision and responsibility of an accredited agency or approved person.” The Universal Accreditation Act of 2012 (UAA) extended this IAA passage to orphan adoptions in non-Convention countries. In accordance with the terminology of “supervision” in the law, the same terminology is used in relevant parts of the IAA’s implementing regulations (i.e., 22 CFR Part 96).

However, an ASP is free to use whatever working title it prefers in its communication about or agreements with foreign supervised providers, the nature of the relationship should be clear to all parties, as well as the AE. Individuals who act as foreign supervised providers could be called a Country Director, In-country Representative, or some other title that seems appropriate. Organizations that are foreign supervised providers could have the working title of Foreign Partner, Orphanage Partner, or some other title that seems appropriate. Foreign supervised provider agreements could be called a Memorandum of Understanding, Service Agreement, Partnership Agreement, Foreign Representative Contract, Provider Expectations, or something else that seems appropriate.

Question 15: An ASP’s local representative arranged the adoption but was not the first person to identify the child as eligible for adoption. Does the ASP need to supervise that representative?

Response: Yes. If an ASP is using a foreign provider that is not otherwise exempted from the supervision requirements and that provider arranges an adoption for an identified child, the foreign provider is providing an adoption service and must be supervised.

Question 16: Does an ASP need to supervise providers in a Convention country?

Response: In most cases, yes. An ASP will need to treat all foreign providers, including agencies, persons, or entities accredited by a foreign country, that are used to provide adoption services as supervised providers unless the foreign provider performs a service qualifying for verification under §96.46(c) (see Question 12) or is a Central Authority, competent authority, or public foreign authority.

Each Convention country has its own unique system and regulations that allow different types of actors to facilitate adoption services and that require or involve different levels of Central Authority oversight and control. ASPs must keep these important country-specific considerations in mind when determining whether 22 CFR § 96.46(a)-(b) or 22 CFR § 96.46(c) applies and how it may supervise or verify providers in different countries. In addition, ASPs should know the organizations and individuals who provide adoption services on a case, including those who facilitate the provision of a service, so it can appropriately determine when supervision or verification is required.

Question 17: A private orphanage in a Convention country performed the child’s background study, made a non-judicial determination on the best interest of the child, and secured the necessary consent to terminate parental rights and to adoption before the ASP was given the referral. If the verification standard is generally met through the Article 16 report unless new and/or contradictory information becomes known that raises questions or doubts about the assurances in the letters, does the ASP need a foreign supervised provider agreement for the private orphanage?

Response: Yes, if the orphanage will provide or facilitate the provision of adoption services, then it must be a supervised provider and have a supervised provider agreement with the ASP. This includes if the orphanage provides or facilitates the provision of adoption service #1, “Identifying a child for adoption and arranging an adoption.” Please see Question 15 above about the adoption service #1. If they do not provide any other adoption service such as adoption service #1, then a foreign supervised provider agreement is not required.

Question 18: What does ‘ensure’ mean in the context of the requirements regarding foreign supervised providers in 22 CFR § 96.46(a)?

Response: 22 CFR § 96.46 a) requires that that an ASP “ensures” that its foreign supervised providers adhere to certain provisions. This generally means that the ASP must take reasonable steps to make certain that the foreign supervised provider meets the criteria outlined in 22 CFR § 96.46(a)(1)-(5). For example, in order to help ensure that a foreign supervised provider is in compliance with the laws of the foreign country, an ASP must, at a minimum, be knowledgeable about those laws, including those that govern intercountry adoption, and must take reasonable steps to confirm that the foreign supervised provider follows those laws in each case. In order to ensure that the provider does not engage in practices inconsistent with the Convention’s principles of furthering the best interests of the child and preventing the sale, abduction, exploitation, or trafficking of children, the ASP should conduct active supervision of the program, the performance of its provider, and its cases.

Question 19: Can the Department create or define additional requirements for the monitoring and oversight of foreign supervised providers so there is greater consistency among ASPs’ monitoring and oversight practices?

Response: Amendments to the existing regulations would entail the formal rulemaking process. However, the Department interprets and can provide clarifications to existing regulations. Concerning this question, 22 CFR § 96.32(d) states that “The agency or person has in place procedures and standards, pursuant to §96.45 and §96.46, for the selection, monitoring, and oversight of supervised providers.” This standard does not define specific monitoring and oversight practices. When considering the appropriate frequency and type of monitoring and oversight practices that protect children and families, ASPs may wish to consider: the countries in which they operate, the number of cases in each country, the fact patterns in those cases, the prevalence of issues like fraud and corruption in those countries, the needs of the children and families being served, and other factors.

Question 20: What should ASPs do if they are unsure whether someone they work with should be treated as a foreign supervised provider and would like country-specific guidance?**

Response: ASPs should know the individuals and organizations they work with in a specific country and all of the services that those entities provide (which includes facilitation of a service). For this reason, an ASP is generally well-positioned to determine whether the individual or organization is providing any adoption service and must therefore be treated as a foreign supervised provider. ASPs may wish to consult available guidance such as this FAQ, other foreign supervised provider information on the Department’s website, the Accreditation Technical Guidance, and the Foreign Supervised Provider Country-Specific Information to assist in making this determination.

Question 21: Does an ASP have to supervise individuals whose work is coordinated by a foreign supervised provider?**

Response: Yes, the ASP must supervise those individuals if they are providing an adoption service and do not fall under any stated exemption. A foreign supervised provider cannot supervise third parties who provide or facilitate the provision of an adoption service. The ASP must supervise them directly. Foreign supervised provider determinations are based on the adoption services provided. ASPs should not make determinations solely based on a person’s job title or whom they communicate with for day-to-day work direction.

For example, ASP X may hire a ‘courier’ to deliver a dossier to a government office and provide no other service. ASP Z works with a ‘courier’ who brings a dossier to a government office, asks government staff about a portion of that family’s dossier, and inquires about another case on behalf of the ASP. Both individuals share the same title and report to the respective ASP’s local representative, but Agency Z must supervise their ‘courier’ as the ‘courier’ is arranging an adoption. As noted, the IAA defines “providing” with respect to an adoption service, to include “facilitating the provision of that service.”

Question 22: Does an ASP have to supervise drivers and interpreters?

Response: The act of driving a vehicle or providing language interpretation does not require supervision, as these are not adoption services. If someone with the title of driver or interpreter also engages in other duties such as providing adoption service #1 “Identifying a child for adoption and arranging an adoption,” then the individual needs supervision for those adoption services. The provision of adoption services determines whether someone needs to be supervised, not their job title.

Question 23: If someone who works in a hotel in a foreign country provides adoption advice to an adoptive family, does the ASP need to supervise that person?

Response: An ASP is not responsible for the advice provided to its clients by strangers. However, if for example, this individual begins providing more than just advice and provides or facilitates an adoption service, and does so on behalf of the ASP, then supervision would be required.

Question 24: Does an ASP have to supervise a travel agency that coordinates regional or provincial logistics for adoptions?

Response: The IAA defines “providing” with respect to an adoption service to include “facilitating the provision of the service.” If the travel agency only provides “normal” travel agency functions such as hotel reservations, airport shuttles, and airplane reservations, then supervision is not necessary. However, if the travel agency is providing or facilitating the provision of any adoption service, including adoption service #1 “Identifying a child for adoption and arranging an adoption,” then the travel agency would need to be supervised for those adoption services.

For example, if a travel agency employee accompanies a family on their provincial visit to provide only translation services, a supervisory agreement is not needed with the individual employee as translation services are not an adoption service. If the individual employee is engaged in more than simple translation, and is providing services that may be considered part of “identifying a child for adoption and arranging an adoption,” ASP supervision is required. However, an individual agreement with the employee may not be necessary if an agreement is already in place with their employer.

Question 25: An ASP is discussing a foreign supervised provider agreement with a private orphanage in a non-Convention country. Before signing the agreement, the orphanage representative gave the ASP a referral of an eligible child to be matched with one of the ASP’s client families. Does the ASP have to give the referral back to the orphanage? Should the ASP backdate the agreement to make it look like it was in place when the orphanage gave the referral?

Response: The ASP does not need to return the child referral to the orphanage due to the lack of a foreign supervised provider agreement. The ASP can apply the verification standard (22 CFR § 96.46(c)) for parental consent and child background studies (unless those services were directly performed by a Central Authority, competent authority, or public foreign authority, which are not subject to verification). Then, the ASP can apply the supervision standard (22 CFR § 96.46(a)-(b)) for the remaining adoption services in the case, such as adoption service #1 identifying a child for adoption and arranging an adoption. The Department recognizes that in some cases an ASP may supervise some aspects of a case and verify other aspects of the case in accordance with the regulations.

Agreements should not be backdated to attempt to re-characterize the situation.

Question 26: If an in-country representative is an ASP employee, does the ASP need a foreign supervised provider agreement with that individual?

Response: No, the ASP’s obligations under the regulations apply to all employees of the ASP regardless of the individual employee’s location. The Accrediting Entity may review evidence of foreign employee relationships during its routine accreditation or monitoring and oversight processes.

Question 27: If an in-country representative is not an ASP employee, but they are an attorney, does the ASP need a foreign supervised provider agreement with that individual?

Response: It depends. If the in-country representative is solely providing legal services as defined in 22 CFR § 96.2, they do not require supervision as legal services are not adoption services. 22 CFR § 96.2 states that “[l]egal services means services, other than those defined in this section as “adoption services,” that relate to the provision of legal advice and information and to the drafting of legal instruments. Such services include, but are not limited to, drawing up contracts, powers of attorney, and other legal instruments; providing advice and counsel to adoptive parent(s) on completing DHS or Central Authority forms; and providing advice and counsel to accredited agencies, approved persons, or prospective adoptive parent(s) on how to comply with the Convention, the IAA and the regulations implementing the IAA.”

However, if the in-country representative is providing one or more adoption services (such as adoption service #1 identifying a child for adoption and arranging an adoption) as defined by 22 CFR § 96.2, then they must be supervised for the adoption services they perform, as required by 22 CFR § 96.12(a).

Question 28: In some cases, orphanage directors accompany biological parents to court to relinquish their parental rights but are present for transportation assistance or moral support and not as legal representatives. Does the ASP need a foreign supervised provider agreement in this scenario?**

Response: The primary provider need not have a foreign supervised provider agreement with a person or entity who is only securing any necessary consent to the termination of parental rights and to adoption. The primary provider, must, however, verify that the consent was obtained in accordance with applicable foreign law and Article 4 of the Convention, pursuant to 22 CFR § 96.46(c). If any adoption services, other than those that qualify for verification under 22 CFR § 96.46(c), are provided (or facilitated) by a person or entity who is not exempt from supervision under 22 CFR § 96.14(d), then a foreign supervised provider agreement is required.

Question 29: 22 CFR § 96.46(b)(3) requires ASPs to ensure that the foreign supervised provider operates under a written agreement that requires the foreign supervised provider to adhere to the standard in 22 CFR § 96.36(a) prohibiting child buying and to have written policies and procedures in place reflecting the prohibitions in 22 CFR § 96.36(a) and reinforce them in training programs for its employees and agents. How often must this training take place? How long should it last? What should it cover?

Response: The language of the regulation focuses on the content of the training, not the number of sessions, frequency, timing, or duration of the training. Recognizing that many ASPs provide this training to foreign supervised providers, the Department notes that ASPs are free to decide how to best provide such training. Training on the prohibitions in 22 CFR § 96.36(a) generally needs to include material on the prohibition on employees and agents giving money or other consideration, directly or indirectly, to a child’s parent(s), other individual(s), or an entity as payment for the child or as an inducement to release the child.

Question 30: Is sharing foreign supervised provider agreement information with the Accrediting Entity a new requirement?**

Response: No. The requirement to share foreign provider information and foreign supervised provider agreements is not new. Under 22 CFR § 96.25, ASPs are required to provide an Accrediting Entity with access to information and documents, such as agreements or information related to foreign supervised providers, that the AE requires or requests in order to evaluate an ASP for purposes including accreditation, approval, monitoring and oversight. This information is sought to verify compliance with 22 CFR § 96.46(b).

The Accrediting Entity requests and maintains foreign supervised provider information pursuant to its responsibilities under 22 CFR §§ 96.6 and 96.7. These standards, among other things, require an Accrediting Entity to monitor the performance of ASPs (including their use of any supervised providers) to ensure their continued compliance with the Hague Adoption Convention, the IAA, the UAA, and the regulations implementing the IAA or UAA; and to investigate and respond to complaints about ASPs (including their use of supervised providers).

Question 31: Where can an ASP find the list of documents they need to have on file for their foreign supervised providers?

Response: The Accrediting Entity, IAAME, provides a list of documents that are reviewed to assess compliance with this standard on the Tables of Evidence on their website. IAAME also provides information in Policy 004 and on their portal about the documentation ASPs need to provide for foreign supervised provider self-reports. If you have additional questions after reviewing this information, you may wish to contact IAAME directly. In addition, you may wish to speak with other ASPs about their record keeping practices and exchange ideas about best practices in record keeping related to 22 CFR § 96.46.

Question 32: Is the Department aware that foreign supervised providers are generally reluctant to discuss their fees, and more importantly, commit them to writing?*

Response: ASPs acting as primary providers and using foreign supervised providers in foreign countries have to ensure that the supervised provider operates under a written agreement that clearly states the compensation arrangement for the services to be provided and the fees and expenses to be charged by the foreign supervised provider. (22 CFR § 96.46(b)(6)). The lack of cooperation of the foreign supervised providers does not exempt the primary provider from its responsibility. The lack of transparency and failure to verify how funds provided to foreign providers are used undermines the principles of the Convention and our accreditation regulations and puts children, birth families, and prospective adoptive families at risk. ASPs are encouraged to explain the importance of fee disclosures to their foreign supervised providers.

Question 33: What should ASPs do if a foreign provider refuses to sign a foreign supervised provider agreement?**

Response: The Department expects that ASPs will be able to work through these issues with foreign providers to remain in substantial compliance with the regulations at all times. If the foreign provider will not cooperate and enter into an agreement, the primary provider will not be able to remain in compliance with 22 CFR §§ 96.44 and 96.46. If an ASP is experiencing difficulties in obtaining a signed agreement, please keep in mind the following:

The obligation to supervise arises from the adoption services performed or facilitated by the foreign provider (See, e.g., 22 CFR §§ 96.14(c), 96.44(b), 96.46(a)). The requirement to have an agreement is a distinct obligation pursuant to 22 CFR 96.46(b). An ASP is generally required to supervise a foreign provider regardless of the status of its written agreement with a foreign provider. Therefore, failure to obtain an agreement does not mean that the provider is not still a foreign supervised provider for purposes of the ASP’s regulatory obligations.

An agreement may meet 22 CFR § 96.46(b) based on its content, not on its title or label. The agreements may have different titles depending on the country context and if the agreement is for an individual or an organization. An agreement may be called a Memorandum of Understanding, Service Agreement, Partnership Agreement, Foreign Representative Contract, Provider Expectations, or something else appropriate.

A written agreement is required. A written agreement may occur on paper or electronically, even as an exchange of emails, so long as there is documentary proof of the content of the agreement and an affirmative written response by the foreign provider agreeing to abide by the terms of the agreement. Verbal agreements or verbal consents do not constitute written agreements. Adoption service providers must have documentary proof of their written agreements with each foreign supervised provider they use for each relationship with a foreign supervised provider in every country where they act as primary provider.

The minimum content required for a foreign supervised provider agreement is outlined in 22 CFR § 96.46(b).

Question 34: What are the recommended best practices related to ​how an ASP can perform supervision, verification, and other regulatory requirements?

Response: The Department recognizes the potential benefit of having established best practices upon which ASPs may rely to guide their work. Multiple stakeholders, including advocacy organizations and other adoption professionals, play important roles in shaping intercountry adoption practices. The Department’s technical guidance, posted on our website, contains examples and clarifications that may assist ASPs in developing the policies and procedures used to guide their practice.

The Accrediting Entity uses the same technical guidance, along with the regulatory standards, to inform its decision-making and provides resources on its webpage and its portal to help ASPs better understand the application of the regulations. In addition, the Accrediting Entity offers periodic ASP training on a variety of regulatory issues. Groups of ASPs and/or professional associations can also play a role in shaping practices and developing and encouraging best practices related to many standards, including but not limited to 22 CFR § 96.46.

Question 35: Who should ASPs contact with questions about how to fill out the Accrediting Entity’s self-report form regarding foreign provider fees and other questions about the type of documentation to be provided on foreign providers?

Response: These types of questions should be directed to the Accrediting Entity, which has independently developed the materials sent to ASPs and is responsible for applying the regulations to ASPs.

Question 36: How should ASPs handle the foreign adoption authorities’ concerns about supervision of organizations or persons who provide adoption services on the ASP’s behalf?

Response: As the U.S. Central Authority, one of the Department’s roles is educating countries on how the U.S. intercountry adoption system works (including U.S. regulations and the accreditation system) and consulting about issues as they arise. The Department has observed that U.S. adoption regulations are not always well understood outside of the United States and that an explanation of the supervision and verification standards and their intent usually reassures foreign adoption authorities that ASPs do not intend to encroach on the monitoring and oversight functions of the foreign government. ASPs should let the Office of Children’s Issues’ Adoption Oversight Division know if they believe a foreign adoption authority may benefit from additional engagement on intercountry adoption issues.”

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