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This information was originally posted as a notice on our website on December 30, 2016.
Case Transfer Responsibilities of Intercountry Adoption Service Providers Following Debarment, Suspension, or Cancellation of Accreditation
The following information pertains to the intercountry adoption case transfer responsibilities of accredited agencies and/or approved persons (collectively referred to as “adoption service providers” or “ASPs”) who are subject to one of the following adverse actions: (1) debarment; (2) suspension, if the Council on Accreditation (“COA”) has determined that transfer of their cases and records is required; or (3) cancellation of accreditation.
When an agency or person is subject to any of the adverse actions mentioned above, Prospective Adoptive Parents and Adoptive Parents are not required to request a transfer of their case to another ASP. The agency or person who has been debarred, suspended, or whose accreditation has been cancelled “must execute the plans required by §96.33(e) and 96.42(d) under the oversight of the accrediting entity, and transfer its intercountry adoption cases and adoption records to other accredited agencies, approved persons, or a State archive, as appropriate.” 22 CFR 96.87.
An agency or person that is subject to any of these adverse actions is obligated to transfer its intercountry adoptions cases and records, and may not condition its execution of its case transfer plan on any agreements, actions or forbearance by Prospective Adoptive Parents or Adoptive Parents.
In particular, an agency or person that is the subject of any of these adverse actions may not condition the transfer of an intercountry adoption case or records on, or otherwise request, the agreement of Prospective Adoptive Parents to abandon, or to not seek, a refund of fees paid to the agency for services not yet rendered. 22 CFR 96.33(e) (a case transfer plan must include provisions for “reimbursement to clients of funds paid for services not yet rendered.”); 96.40(h) (agency must “return any funds to which the prospective adoptive parent(s) may be entitled within sixty days of the completion of the delivery of services.”).
An agency or person that is the subject of any of these adverse actions also may not condition the transfer of an intercountry adoption case or records on, or otherwise request, the agreement of Prospective Adoptive Parents not to make a complaint, grievance, or other statement concerning the agency. 22 CFR 96.41(e) (“The agency or person does not take any action to discourage a client or prospective client from, or retaliate against a client or prospective client for: making a complaint; expressing a grievance; providing information in writing or interviews to an accrediting entity on the agency's or person's performance; or questioning the conduct of or expressing an opinion about the performance of an agency or person.”)
An agency or person that is the subject of any of these adverse actions also may not condition the transfer of an intercountry adoption case or records on, or otherwise request, a general release or waiver of liability from Prospective Adoptive Parents. 22 CFR 96.39 (d) (“The agency or person requires a client to sign a waiver of liability as part of the adoption service contract only where that waiver complies with applicable State law. Any waiver required is limited and specific, based on risks that have been discussed and explained to the client in the adoption services contract.”)
Please note that under 22 CFR 96.87, the agency or person’s execution of its transfer plans is under the oversight of the Accrediting Entity, the Council on Accreditation. The Department of State does not review or approve case transfer plans. The Department does, however, communicate with foreign Central Authorities and competent adoption authorities about the accreditation status of agencies and persons and case transfer plans, as needed.
Families may wish to seek legal advice before signing an agreement relating to the transfer of an intercountry adoption case.