Guidance for ASPs – Case Transfers after an Original Primary Provider’s Relinquishment or Loss of Accreditation

The following information is in response to commonly asked questions regarding the responsibilities of the adoption service provider (ASP) that is no longer accredited or approved, which cases need to be transferred, a new primary provider’s responsibilities when they accept a case, and fees that may be charged by a new primary provider. This information was originally disseminated via public notices on December 30, 2016 and on April 20, 2018.

ASP Obligations following Loss of Accreditation or Approval:

Federal regulations require an ASP that is no longer accredited or approved to:

    a.       Execute the plans required by §96.33(e) and 96.42(d) under the oversight of the accrediting entity for all applicable clients;

    b.       Transfer its intercountry adoption cases and adoption records, even if clients have not made a specific request, to other accredited agencies, approved persons, or a State archive, as appropriate (22 CFR 96.87);

   c.       Complete the refund of fees paid for services not yet rendered within 60 days and provide prospective adoptive parents with information on any refunds for which they may be eligible and details about any fees that have not yet been expended that can be transferred to a new ASP (22 CFR 96.40(h)).

ASPs that are relinquishing accreditation or approval, as opposed to losing accreditation or approval as the result of adverse action, should contact the Accrediting Entity for guidance on handling case transfers.

Client Considerations:

Prospective adoptive parent clients are under no obligation to wait for case transfer information from an ASP or to work with the agency that the ASP identifies. If they are not in agreement with the ASP’s case transfer plan, they may contact ASP or the identified agency to advocate for their preference to work with a different agency. Prospective adoptive parents in need of guidance to identify a new primary provider for their case should contact the Accrediting Entity.

An ASP 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 ASP may not condition the transfer of an intercountry adoption case or records on, or otherwise request:

    a.     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) and 96.40(h));

    b.      The agreement of prospective adoptive parents not to make a complaint, grievance, or other statement concerning the agency.  (22 CFR 96.41(e));

    c.      A general release or waiver of liability from Prospective Adoptive Parents.  (22 CFR 96.39(d))

Which Cases Must an ASP Transfer Following the Loss of Accreditation or Approval?

The USCIS publication If Your Adoption Service Provider is No Longer Accredited or Approved provides helpful information about assessing how an ASP’s relinquishment or loss of accreditation or approval will impact cases in different stages of the process. USCIS may require prospective adoptive parents to submit evidence of a new primary provider, including a copy of the new client services contract/agreement or other similar document that establishes a clear ASP-client relationship. A foreign government may impose additional case transfer requirements, such as, but not limited to, a requirement to transfer post-adoption cases to another provider.

Accepting Case Transfers from another ASP:

An ASP that accepts a case transfer is not responsible for the actions of the original ASP that were conducted prior to the case transfer. They are, however, responsible for ensuring that its actions as the new primary provider meet accreditation regulations. They should, exercise due diligence:

    a.       To ensure that the case meets the standards of Subpart F;

    b.       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

    c.       For its actions as the new primary provider.  

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; their pre-adoption education and preparation; their home study; and their suitability to parent the child with whom they are matched (if applicable). The Department strongly recommends that new potential primary providers 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 as part of assessing the prospective adoptive parents’ preparation and suitability.

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, as 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.

Primary providers must be in compliance with all applicable regulations including, but not limited to, regulations on using supervised and other providers found in 22 CFR 96.44 and 96.46. Failure to exercise due diligence on accepted case transfers does not absolve an ASP of its regulatory requirements.

Fees and Contracts:

ASPs accepting case transfers will need to follow all applicable regulations, including but not limited to, standards that address contracts, service plans, and fees. A new primary provider may need to charge fees to the prospective adoptive family to cover work associated with exercising due diligence on the case and to provide any remaining services for the adoption or placement.

When an ASP Maintains Accreditation or Approval as a Primary Provider in the United States but the Foreign Country Prohibits the ASP from Continuing Operations in that Country:

The guidance above also applies to case transfers that occur when the foreign country prohibits an ASP acting as a primary provider from facilitating adoptions in any capacity.  In these situations, the foreign government may impose additional case transfer requirements, such as, but not limited to, a requirement to transfer post-adoption cases to another provider.

ASP Reporting Requirements:

ASPs are responsible for filing all relevant mandatory self-reports to the appropriate Accrediting Entity within the specified timeframes. Questions about reporting requirements should be directed to the Accrediting Entity.

The Department of State’s Role:

The Department of State’s role with case transfer plans is limited.  The ASP’s execution of its transfer plans falls under the oversight of the Accrediting Entity (22 CFR 96.84). 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.