E6-11362. Memorandum of Agreement Between the U.S. Department of State and the Council on Accreditation Regarding Performance of Duties as an Accrediting Entity Under the Intercountry Adoption Act of 2000

AGENCY:

Department of State.

ACTION:

Notice.

SUMMARY:

The Department of State (the Department) is the lead Federal agency for implementation of the 1993 Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (the Convention) and the Intercountry Adoption Act of 2000 (IAA). Among other things, the IAA gives the Secretary of State responsibility for the accreditation of agencies and approval of persons to provide adoption services under the Convention. The IAA requires the Department to enter into agreements with one or more qualified entities under which such entities will perform the tasks of accrediting agencies and approving persons, monitoring compliance of such agencies and persons with applicable requirements, and other related duties set forth in section 202(b) of the IAA. This notice is to inform the public that on July 12, 2006, the Department exercised its authority under the IAA and entered into a Memorandum of Agreement (MOA) with the Council on Accreditation under which the Department designated the Council on Accreditation as an accrediting entity. In its role as an accrediting entity, the Council on Accreditation will be accrediting or approving qualified agencies and persons throughout the United States in accordance with the procedures and standards set forth in 22 CFR Part 96 to enable them to provide adoption services in cases subject to the Convention once the Convention enters into force for the United States. The Department will monitor the performance of the Council on Accreditation and approve fees charged by it as an accrediting entity. The text of the MOA, signed on July 12, 2006 by Maura Harty, Assistant Secretary for Consular Affairs, U.S. Department of State and signed on July 6, 2006 by Richard Klarberg, President and Chief Executive Officer, Council on Accreditation, is included at the end of this Notice.

FOR FURTHER INFORMATION CONTACT:

Mikiko Stebbing at 202-736-9086. Hearing or speech-impaired persons may use the Telecommunications Devices for the Deaf (TDD) by contacting the Federal Information Relay Service at 1-800-877-8339.

SUPPLEMENTARY INFORMATION:

The Department, pursuant to section 202(a) of the IAA, must enter into an agreement with at least one qualified entity and designate it as an accrediting entity. Accrediting entities may be (1) Nonprofit private entities with expertise in developing and administering standards for entities providing child welfare services; or (2) State adoption licensing bodies that have expertise in developing and administering standards for entities providing child welfare services and that accredit only agencies located in that State. Both nonprofit accrediting entities and state accrediting entities must meet any other criteria that the Department may by regulation establish. The Council on Accreditation is a nonprofit private entity with expertise in developing and administering standards for entities providing child welfare services throughout the United States. The final rule on accreditation of agencies and approval of persons (22 CFR Part 96) was published in the Federal Register (71 FR 8064-8066, February 15, 2006). The final rule contains the Department's additional criteria for designation as an accrediting entity. The final rule also establishes the regulatory framework for the accreditation and approval function and provides the standards that the designated accrediting entities will follow in accrediting or approving adoption service providers.

Memorandum of Agreement Between the Department of State Bureau of Consular Affairs and the Council on Accreditation

Parties and Purpose of the Agreement

The Department of State, Bureau of Consular Affairs (Department) and the Council on Accreditation (COA), with its principal office located at 120 Wall Street, 11th floor, New York, NY 10005, hereinafter the “Parties”, are entering into this agreement for the purpose of designating COA as an accrediting entity under the Intercountry Adoption Act of 2000 (IAA), Public Law 106-279 and 22 CFR Part 96.

Authorities

The Department enters into this agreement pursuant to Sections 202 and 204 of the IAA, 22 CFR Part 96, and Delegation of Authority 261. COA has full authority to enter into this MOA pursuant to a resolution passed by its Board of Trustees dated June 30, 2006, a copy of which is attached hereto as Attachment 1, which resolution authorizes Richard Klarberg to execute this agreement on behalf of COA.

Definitions

For purposes of this memorandum of agreement, terms used here that are defined in 22 CFR 96.2 shall have the same meaning as they have in 22 CFR 96.2. In addition, the terms “transitional application deadline” (TAD) and “date of initial accreditation or approval” (DIAA) shall have the meaning given them in 22 CFR 96.19 and “uniform notification date” (UND) shall have the meaning given it in 22 CFR 96.58.

The Parties agree as follows:

Article 1—Designation of the Accrediting Entity

The Department hereby designates COA as an accrediting entity and thereby authorizes it to accredit (including temporarily accredit) agencies and approve persons to provide adoption services in Convention adoption cases, in accordance with the procedures and standards set forth in 22 CFR Part 96, and to perform all of the accrediting entity functions set forth in 22 CFR 96.7(a).

Article 2—Accreditation Responsibilities and Duties of the Accrediting Entity

(1) COA agrees to perform all accrediting entity functions set forth in 22 CFR 96.7(a) and to perform its functions in accordance with the Convention, the IAA, Part 96 of 22 CFR and any other applicable regulations, and as additionally specified in this agreement. In performing these functions, COA will operate under policy direction from the Department regarding U.S. obligations under the Convention and regarding the functions and responsibilities of an accrediting entity.

(2) COA will take appropriate staffing, funding, and other measures to allow it to carry out all of its functions and fulfill all of its responsibilities, and will use the adoptions tracking system and the Hague complaint registry (ATS/HCR) as directed by the Department, including by updating required data fields in a timely fashion.

(3) In carrying out its accrediting entity functions COA will:

(a) Prepare to accept applications by the TAD by expending its own funds and other resources for materials development, staff training, travel and meeting attendance in advance of receiving any fees for its services as an accrediting entity;

(b) Make decisions on accreditation and approval in accordance with the procedures set forth in 22 CFR Part 96 and using only the standards in subpart F of 22 CFR Part 96 and the substantial compliance weighting system approved by the Department pursuant to para. 5, Article 3 below;

(c) Make decisions on temporary accreditation in accordance with the procedures and standards in subpart N of 22 CFR Part 96 and the procedures presented to the Department pursuant to para. 3, Article 3 below;

(d) Charge applicants for accreditation, approval, or temporary accreditation only fees approved by the Department pursuant to para. 4, Article 3 below;

(e) Consistent with 22 CFR 96.19 and 96.97, use its best efforts to evaluate and decide by the DIAA all applications for accreditation, temporary accreditation, or approval that were submitted by the TAD;

(f) Review complaints, including complaints regarding conduct alleged to have occurred abroad, in accordance with subpart J of 22 CFR Part 96 and the additional procedures approved by the Department pursuant to paragraphs 3(c) and 3(d) in Article 3, below. COA will exercise its discretion in determining which methods are most appropriate to review complaints regarding conduct alleged to have occurred abroad.

(g) Take adverse actions against accredited agencies, temporarily accredited agencies, and approved persons in accordance with subparts K and N of 22 CFR Part 96, and cooperate with the Department in any case in which the Department considers exercising its adverse action authorities because the accrediting entity has failed or refused after consultation with the Department to take what the Department considers to be appropriate enforcement action.

(h) Assume full responsibility for defending adverse actions in court proceedings, if challenged by the adoption service provider or the adoption service provider's board or officers;

(i) Refer an adoption service provider to the Department for debarment if, but only if, it concludes after investigation that the adoption service provider's conduct meets the standards for action by the Secretary set out in 22 CFR 96.85;

(j) Promptly report any change in the accreditation (including temporary accreditation) or approval status of an adoption service provider to the relevant state licensing authority.

(k) Maintain and use only the required procedures approved by the Department and those procedures presented to the Department pursuant to Article 3 of this agreement whenever they apply.

Article 3—Preparatory Tasks (Tasks Preceding the Transitional Application Deadline)

(1) Accreditation Materials and Training: In coordination with the Department and any other designated accrediting entities, by a date agreed upon by the Parties, COA will:

(a) Develop forms, training materials, and evaluation practices;

(b) Determine whether joint training of evaluators or other personnel is practical, and, if so, assist in conducting or participate in any joint training sessions;

(c) Develop explanatory guidance to assist applicants for accreditation, temporary accreditation, and approval in achieving substantial compliance with the applicable standards.

(2) Development of Internal Review Procedure: COA will develop and present to the Department for approval, by a date agreed upon by the Parties, procedures that it will maintain and use to determine whether to terminate adverse actions against an accredited agency or approved person on the grounds that the deficiencies necessitating the adverse action have been corrected.

(3) Development of Other Procedures: COA will develop and present to the Department, by a date agreed upon by the Parties, procedures that it will maintain and use:

(a) To evaluate whether a candidate for temporary accreditation meets the applicable eligibility requirements set forth in 22 CFR 96.96;

(b) To carry out its annual monitoring duties;

(c) To review thoroughly complaints or information referred to it through the Hague Complaint Registry or from the Department directly, including procedures for obtaining complete and accurate information about conduct alleged to have occurred abroad;

(d) To review complaints that it receives about its own actions as an accrediting entity for Hague adoption service providers;

(e) To make the public disclosures required by 22 CFR 96.91; and

(f) To ensure the reasonableness of charges for the travel and maintenance of its site evaluators, such as for travel, meals and accommodations, which charges shall be in addition to the fees charged under 22 CFR 96.8.

(4) Fee Schedule Development:

(a) COA will develop a fee schedule for accreditation, temporary accreditation, and approval services that meets the requirements of 22 CFR 96.8. Fees will be set based on the principle of recovering no more than the full cost, as defined in OMB Circular A-25 paragraph 6(d)(1), of accreditation, temporary accreditation, and approval services. COA will submit a fee schedule developed using this methodology together with comprehensive documentation justifying the proposed fees to the Department for approval by a date agreed by the Parties.

(b) The approved fee schedule can be amended with the approval of the Department.

(5) Substantial Compliance Weighting Systems Development:

(a) COA will develop a substantial compliance weighting system as described in 22 CFR 96.27, and will submit it to the Department for approval by a date agreed upon by the Parties.

(b) COA will develop a separate substantial compliance weighting system to be used in evaluating temporarily accredited agencies that incorporates the performance standards in 22 CFR 96.104 and will submit it to the Department for approval by a date agreed upon by the Parties.

(c) In developing the systems described in paragraphs (a) and (b) of this section, COA will coordinate with any other accrediting entities, and consult with the Department to ensure consistency between the systems used by accrediting entities. These systems can be amended with the approval of the Department.

Article 4—Initial Accreditation (Including Temporary Accreditation) and Approval Tasks

(1) The Department will consult with COA and all other accrediting entities before establishing the transitional application deadline (TAD), the uniform notification date (UND), and the deadline for initial accreditation or approval (DIAA).

(2) Within an agreed number of days following the TAD, COA will make public the names and addresses of agencies and persons that have applied to be accredited (including temporarily accredited) or approved, provide a mechanism for the public to comment on applicants, and consider comments received from the public in its decisions on applicants. With respect to additional applications received prior to entry into force of the Convention, COA will make the names of such applicants public within an agreed number of days following receipt. COA will consider any public comments in its decisions on the additional applicants.

(3) In conformity with 22 CFR 96.58, COA will not release its accreditation (including temporary accreditation) and approval decisions prior to the UND. COA will prepare the list of decisions to be announced on the UND and transmit the information as directed by the Department. COA will immediately notify the Department of any corrections, so that the Department may rely upon this list in compiling the list of initially accredited and approved adoption service providers that it will deposit with the Permanent Bureau of the Hague Conference on Private International Law.

Article 5—Data Collection, Reporting and Records

(1) Adoptions Tracking System/Hague Complaint Registry (ATS/HCR):

(a) COA will maintain and fund a computer and internet connection for use with the ATS/HCR that meets system requirements set by the Department;

(b) The Department will provide software or access tokens needed by individuals for secure access to the ATS/HCR and facilitate any necessary training in use of the ATS/HCR;

(2) Annual Report: COA will report on dates agreed upon by the Parties, in a mutually agreed upon format, the information required in 22 CFR 96.93 as provided in that section through ATS/HCR.

(3) Additional Reporting: COA will provide any additional status reports or data as reasonably required by the Department, and in a mutually agreed upon format.

(4) Accrediting Entity Records: COA will retain all records related to its accreditation functions and responsibilities in printed or electronic form in accordance with the electronic recordkeeping policy that applies to Federal acquisition contracts under Federal Acquisition Regulation 4.703 for a minimum of six years after their creation, or until any litigation, claim or audit related to the records filed or noticed within the six year period is finally terminated, whichever is longer.

Article 6—Department Oversight and Monitoring

(1) To facilitate oversight and monitoring by the Department, COA will:

(a) Provide copies of its forms and other materials to the Department and give Department personnel the opportunity to participate in any training sessions for its evaluators or other personnel;

(b) Allow the Department to inspect all records relating to its accreditation functions and responsibilities and provide to the Department copies of such records as requested or required for oversight, including to evaluate renewal or maintenance of the accrediting entity's designation, and for purposes of transferring adoption service providers to another accrediting entity;

(c) Submit to the Department by a date agreed upon by the Parties an annual declaration signed by the President and Chief Executive Officer confirming that COA is complying with the IAA, 22 CFR Part 96, any other applicable regulations, and this agreement in carrying out its functions and responsibilities;

(d) Make appropriate senior-level officers available to attend a yearly performance review meeting with the Department;

(e) Immediately report to the Department events which have a significant impact on its ability to perform its functions and responsibilities as an accrediting entity, including financial difficulties, changes in key personnel or other staffing issues, legal or disciplinary actions against the organization, and conflicts of interest;

(f) Notify the Department of any requests for information relating to its role as an accrediting entity under the IAA or Department functions or responsibilities that it receives from Central Authorities of other Hague signatories, or any other foreign government authorities (except for routine requests concerning accreditation, temporary accreditation, or approval status or other information publicly available under subpart M of Part 96) , and consult with the Department before releasing such information;

(g) Consult immediately with the Department about any issue or event that may affect compliance with the IAA or U.S. compliance with obligations under the Convention.

(2) Departmental Approval Procedures: In all instances in which the Department must approve a policy, system, fee schedule, or procedure before COA can bring it into effect or amend it, COA will submit the policy, system, fee schedule, or procedure or amendment in writing to the Department's AE Liaison via email where possible. The AE Liaison will be responsible for coordinating the Department's approval process and arranging any necessary meetings or telephone conferences with COA. Formal approval by the Department will be conveyed in writing by the Deputy Assistant Secretary for Overseas Citizens Services or her or his designee.

(3) Suspension or Cancellation: When the Department is considering suspension or cancellation of COA's designation:

(a) The Department will notify COA in writing of the identified deficiencies in its performance and the time period in which the Department expects correction of the deficiencies;

(b) COA will respond in writing to either explain the actions that it has taken or plans to take to correct the deficiencies or to demonstrate that the Department's concerns are unfounded within 10 business days;

(c) Upon request, the Department will also meet with the accrediting entity by teleconference or in person;

(d) If the Department, in its sole discretion, is not satisfied with the actions or explanation of COA, it will notify COA in writing of its decision to suspend or cancel COA's designation and this agreement;

(e) COA will stop or suspend its actions as an accrediting entity as directed by the Department in the notice of suspension or cancellation, and cooperate with any Departmental instructions in order to transfer adoption service providers it accredits (including temporarily accredits) or approves to another accrediting entity, including by transferring fees collected by COA for services not yet performed.

(4) By a date agreed upon by the Parties, the Parties will agree upon procedures for handling complaints against the accrediting entity received by the Department or referred to the Department because the complainant was not satisfied with the accrediting entity's resolution of the complaint. These complaint procedures may be incorporated into the Department's general procedures for handling instances in which the Department is considering whether a deficiency in the accrediting entity's performance may warrant suspension or cancellation of its designation.

Article 7—Other Issues Agreed by the Parties

(1) Conflict of interest provisions:

(a) COA shall disclose to the Department the name of any organization of which it is a member that also has as members intercountry adoption service providers. COA shall demonstrate to the Department that it has procedures in place to prevent any such membership from influencing its actions as an accrediting entity and shall maintain and use these procedures.

(b) COA shall identify for the Department all members of its board of directors or other governing body, employees, and site evaluators who also serve as officers, directors, employees, or owners of adoption service providers. COA shall demonstrate it has procedures in place to ensure that any such relationships will not influence any accreditation (including temporary accreditation) or approval decisions, and shall maintain and use these procedures.

(c) COA shall disclose to the Department any other situation or circumstance that may create the appearance of a conflict of interest.

(2) Liability: COA agrees to maintain sufficient resources to defend challenges to its actions as an accrediting entity, including by maintaining adequate liability insurance for its actions as an accrediting entity brought by agencies and/or persons seeking to be accredited or approved or who are accredited or approved, and to inform the Department immediately of any events that may affect its ability to defend itself (e.g., change in or loss of insurance coverage, change in relevant state law). COA agrees that it will consult with the Department immediately if it becomes aware of any other legal proceedings related to its acts as an accrediting entity, or of any legal proceedings not related to its acts as an accrediting entity that may threaten its ability to continue to function as an accrediting entity.

Article 8—Liaison Between the Department and the Accrediting Entity

(1) COA's principal point of contact for communications relating to its functions and duties as an accrediting entity will be the Standards Associate. The Department's principal point of contact for communication is the Accrediting Entity Liaison officer in the Office of Children's Issues, Bureau of Consular Affairs, U.S. Department of State.

(2) The parties will keep each other currently informed in writing of the names and contact information for their principal points of contact. As of the signing of this Agreement, the respective principal points of contact are as set forth in Attachment 1.

Article 9—Certifications and Assurances

(1) COA certifies that it will comply with all requirements of applicable State and Federal law.

Article 10—Agreement, Scope, and Period of Performance

(1) Scope:

(a) This agreement is not intended to have any effect on any activities of COA that are not related to its functions as an accrediting entity for adoption service providers providing adoption services in intercountry adoptions under the Hague Convention.

(b) Nothing in this agreement shall be deemed to be a commitment or obligation to provide any Federal funds. The Department, consistent with the IAA, may not provide any funds to the accrediting entity for the performance of accreditation and approval functions.

(c) All accrediting entity functions and responsibilities authorized by this agreement are to occur only during the duration of this agreement.

(d) Nothing in this agreement shall release COA from any legal requirements or responsibilities imposed on the accrediting entity by the IAA, 22 CFR Part 96, or any other applicable laws or regulations.

(2) Duration: COA's designation as an accrediting entity and this agreement shall remain in effect for 5 years from signature, unless terminated earlier by the Department in conjunction with the suspension or cancellation of the designation of COA. The Parties may mutually agree in writing to extend the designation of the accrediting entity and the duration of this agreement. If either Party does not wish to renew the agreement, it must provide written notice no less than one year prior to the termination date, and the Parties will consult to establish a mutually agreed schedule to transfer adoption service providers to another accrediting entity, including by transferring a reasonable allocation of collected fees for the remainder of the accreditation or approval period of such adoption service providers.

(3) Changed Circumstances: If unforeseen circumstances arise that will render COA unable to continue to perform its duties as an Accrediting Entity, COA will immediately inform the Department of State. The Parties will consult and make an effort to find a solution that will enable COA to continue to perform until the end of the contract period. If no such solution can be reached, the contract may be terminated on a mutually agreed date or, if mutual agreement can not be reached, on not less than 14 months written notice from COA.

(4) Severability: To the extent that the Department determines, within its reasonable discretion, that any provision of this agreement is inconsistent with the Convention, the IAA, the regulations implementing the IAA or any other provision of law, that provision of the agreement shall be considered null and void and the remainder of the agreement shall continue in full force and effect as if the offending portion had not been a part of it.

(5) Entirety of Agreement: This agreement is the entire agreement of the Parties and may be modified only upon written agreement of the Parties.

Attachment 1—Resolution Unanimously Adopted by the Board of Trustees of the Council on Accreditation

June 30, 2006.

“Be it resolved, that Richard Klarberg is authorized to execute a Memorandum of Agreement by and between the Council on Accreditation (COA) and the Department of State, Bureau of Consular affairs pursuant to which COA is designated as an accrediting entity under the Intercountry Adoption Act of 2000 (IAA), Public Law 106-279 and 22 C.F.R. Part 96.”

Dated: July 12, 2006.

Maura Harty,

Assistant Secretary, Bureau of Consular Affairs, Department of State.