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Adoption Notice: FAQ on Foreign Supervised Providers for ASP Community

October 5, 2017

Foreign Supervised Provider Update

The Department received several inquiries about foreign supervised providers and has compiled them into the following Q & A.

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

A: No. The requirement to share foreign provider information and foreign supervised provider agreements is not new. Under 22 CFR 96.25, accredited agencies and approved persons (collectively referred to as “adoption service providers” or “ASPs”) are required to provide an accrediting entity (AE) with access to information and documents, such as agreements or information related to foreign supervised providers, that it requires or requests to evaluate an ASP for purposes including accreditation, approval, monitoring and oversight. This information is being sought to verify compliance with 22 CFR 96.46(b).

ASPs already provide the AE with information on foreign providers, generally in the self-study submission, during site visits, and during the accreditation cycle through mandatory self-reports such as the Significant Change in Compensation report which applies to directors, officers, employees and/or supervised providers (See http://coanet.org/standard/spd/96.46/ and www.coanet.org Policies and Procedures or https://coa.my.salesforce.com/sfc/p/#300000000aAUdkOa6US_sg2UEif08XWFNvncz1A=)

Foreign supervised provider information is being requested and maintained by the Council on Accreditation pursuant to its responsibilities under 22 CFR 96.6 and 96.7. These standards, among other things, require an AE to monitor the performance of agencies it has accredited and persons it has approved (including their use of any supervised providers) to ensure their continued compliance with the Hague Adoption Convention, the Intercountry Adoption Accreditation Act of 2000 (IAA), the Universal Accreditation Act of 2012 (UAA), and the regulations implementing the IAA or UAA; and to investigate and respond to complaints about ASPs (including their use of supervised providers).

The Department has issued guidance on supervising foreign providers in the past. Links to this guidance can be found below.

https://travel.state.gov/content/adoptionsabroad/en/about-us/newsroom/noticeguidanceonsupervisingforeignproviders.html

https://travel.state.gov/content/adoptionsabroad/en/information-for-you/agencies/hague-accreditation-technical-guidance.html

Q: I am aware that orphanage directors sometimes accompany biological parents to court to relinquish their parental rights. They are not present in the capacity of legal representatives. Generally, they are there to provide transportation and moral support to birth parents. Do I need a foreign supervised provider agreement?

A: 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 pursuant to 22 CFR 96.46(c). If any adoption services, other than having obtained any necessary consent to termination of parental rights or to adoption, 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.

Q: I am unsure if someone should be treated as a foreign supervised provider and would like country specific guidance. What do I do?

A: ASPs know all the individuals and organizations they work with in a given country and all of the services that those entities provide (which includes facilitation of a service). For this reason, an ASP is well positioned to make a foreign supervised provider determination in consultation with the resources listed above.

To the extent that the Department obtains background information that is relevant to the ASP’s understanding of the role that specific providers are or are not allowed to play in a certain country, the Department will provide such information. For example, the Department recently shared that ASPs working in the Philippines do not need to supervise or have foreign supervised provider agreements with orphanages there because of the controls in place by ICAB for the normal adoption process. However if an ASP has a case that falls outside of ICABs normal process, the ASP will need to determine if a foreign supervised provider agreement is necessary with an orphanage, entity, or person based on the adoption services provided in that case. Similarly, if ICAB were to change it rules or procedures, an ASP would need to revisit its relationship with its foreign providers and determine if they should be supervised or exempt from supervision.

Q: Can we treat every Convention Country like the Philippines?

A: No. The information on the role of orphanages in the Philippines is specific to the Philippines. Countries differ in their internal processes including, but not limited to, how they exert control over the adoption system, how they regulate orphanages, how adoption documents flow between government offices and government branches, the type and frequency of contact adoption services providers are permitted to have with orphanages, and more. ASPs need to make an informed, independent, provider by provider assessment of who should be supervised and exempt from supervision for every country where they work.

Q: Is the Department aware that foreign supervised providers are in general reluctant either to discuss their fees, or more importantly, commit them to writing?

A: 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.

Q: Does an ASP have to supervise facilitators in Ukraine since the country does not authorize ASPs to work there?

Any person providing (or facilitating) an adoption service must be supervised consistent with 22 CFR 96.46. Facilitators in Ukraine who provide (or facilitate) one or more adoption services for U.S. families must be U.S. accredited or approved ASPs, or work under the supervision of a U.S. accredited or approved ASP.

Q: Do we have to supervise individuals whose work is coordinated by our local representative, if we treat the local representative as a foreign supervised provider?

A: Yes. Foreign supervised provider determinations are based on the adoption services provided. Determinations cannot be made solely based on a person’s title or who they communicate with for day-to-day work direction. ASPs must supervise anyone who provides an adoption service, unless otherwise exempt by the regulations. 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 inquiries about another case on behalf of the agency. Both individuals share the same title and report to their ASP’s local representative, but the ‘courier’ for Agency Z is arranging an adoption and therefore must be supervised. Please note that the IAA defines “providing” with respect to an adoption service, to include “facilitating the provision of that service.”

Q: I tried to get my foreign provider to sign a foreign supervised provider agreement, but they refuse. What do I do?

A: 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 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 22 CFR 96.14(c), 96.44(b), 96.46 (a)). The requirement to have an agreement is a separate obligation pursuant to 22 CFR 96.46(b). An ASP is 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.
  • An agreement meets 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 show and maintain documentary proof for each applicable foreign relationship in every country where they act as primary provider.
  • The minimum content required in a supervisory agreement is outlined in 22 CFR 96.46 (b).

Q: I have questions about how to fill out the form regarding fees and other questions about the type of documentation I need to provide on my foreign providers. Who should I contact?

A: The Council on Accreditation (COA) independently developed the materials sent to ASPs and is responsible for applying the regulations to accredited agencies and approved persons. These types of questions should be directed to COA.

 Q: Will the deadline be extended because there are questions from adoption service providers?

A: No. The IAA was effective October 6, 2000. 22 CFR 96 went into effect on April 1, 2008 and its regulations were binding on non-Convention cases as of July 14, 2014. Accredited agencies and approved persons must remain in substantial compliance with the regulations at all times. The requirement to ensure that foreign providers providing adoption services are supervised in accordance with 22 CFR 96.46 and to share foreign provider information and foreign supervised provider agreements is not new.