§ 43-1103 — Interstate Compact for the Placement of Children

Nebraska § 43-1103

• Jurisdiction: Nebraska
• Ch. 43: Infants and Juveniles

Text

ARTICLE I. PURPOSE
The purpose of this Interstate Compact
for the Placement of Children is to:
A. Provide
a process through which children subject to this compact are placed in safe
and suitable homes in a timely manner.
B. Facilitate ongoing supervision of a placement,
the delivery of services, and communication between the states.
C. Provide
operating procedures that will ensure that children are placed in safe and
suitable homes in a timely manner.
D. Provide for the promulgation and enforcement
of administrative rules implementing the provisions of this compact and regulating
the covered activities of the member states.
E. Provide for uniform
data collection and information sharing between member states under this compact.
F. Promote
coordination between this compact, the Interstate Compact for Juveniles, the
Interstate Compact on Adoption and Medical Assistance and other compacts affecting
the placement of and which provide services to children otherwise subject
to this compact.
G. Provide for a state's continuing legal jurisdiction and responsibility
for placement and care of a child that it would have had if the placement
were intrastate.
H. Provide for the promulgation of guidelines, in collaboration
with Indian tribes, for interstate cases involving Indian children as is or
may be permitted by federal law.
ARTICLE II. DEFINITIONS
As used in
this compact,
A. "Approved placement" means the public child-placing agency in
the receiving state has determined that the placement is both safe and suitable
for the child.
B. "Assessment" means an evaluation of a prospective placement by
a public child-placing agency in the receiving state to determine if the placement
meets the individualized needs of the child, including, but not limited to,
the child's safety and stability, health and well-being, and mental, emotional,
and physical development. An assessment is only applicable to a placement
by a public child-placing agency.
C. "Child" means an individual who has not
attained the age of eighteen (18).
D. "Certification" means to attest, declare
or swear to before a judge or notary public.
E. "Default" means the
failure of a member state to perform the obligations or responsibilities imposed
upon it by this compact, the bylaws or rules of the Interstate Commission.
F. "Home study"
means an evaluation of a home environment conducted in accordance with the
applicable requirements of the state in which the home is located, and documents
the preparation and the suitability of the placement resource for placement
of a child in accordance with the laws and requirements of the state in which
the home is located.
G. "Indian tribe" means any Indian tribe, band, nation, or other
organized group or community of Indians recognized as eligible for services
provided to Indians by the Secretary of the Interior because of their status
as Indians, including any Alaskan native village as defined in section 3(c)
of the Alaska Native Claims Settlement Act, 43 U.S.C. 11 section 1602(c).
H. "Interstate
Commission for the Placement of Children" means the commission that is created
under Article VIII of this compact and which is generally referred to as the
Interstate Commission.
I. "Jurisdiction" means the power and authority of a court to hear
and decide matters.
J. "Legal Risk Placement" ("Legal Risk Adoption") means a placement
made preliminary to an adoption where the prospective adoptive parents acknowledge
in writing that a child can be ordered returned to the sending state or the
birth mother's state of residence, if different from the sending state, and
a final decree of adoption shall not be entered in any jurisdiction until
all required consents are obtained or are dispensed with in accordance with
applicable law.
K. "Member state" means a state that has enacted this compact.
L. "Noncustodial
parent" means a person who, at the time of the commencement of court proceedings
in the sending state, does not have sole legal custody of the child or has
joint legal custody of a child, and who is not the subject of allegations
or findings of child abuse or neglect.
M. "Nonmember state" means a state which
has not enacted this compact.
N. "Notice of residential placement" means
information regarding a placement into a residential facility provided to
the receiving state including, but not limited to, the name, date, and place
of birth of the child, the identity and address of the parent or legal guardian,
evidence of authority to make the placement, and the name and address of the
facility in which the child will be placed. Notice of residential placement
shall also include information regarding a discharge and any unauthorized
absence from the facility.
O. "Placement" means the act by a public
or private child-placing agency intended to arrange for the care or custody
of a child in another state.
P. "Private child-placing agency" means
any private corporation, agency, foundation, institution, or charitable organization,
or any private person or attorney that facilitates, causes, or is involved
in the placement of a child from one state to another and that is not an instrumentality
of the state or acting under color of state law.
Q. "Provisional placement"
means a determination made by the public child-placing agency in the receiving
state that the proposed placement is safe and suitable, and, to the extent
allowable, the receiving state has temporarily waived its standards or requirements
otherwise applicable to prospective foster or adoptive parents so as to not
delay the placement. Completion of the receiving state requirements regarding
training for prospective foster or adoptive parents shall not delay an otherwise
safe and suitable placement.
R. "Public child-placing agency" means any
government child welfare agency or child protection agency or a private entity
under contract with such an agency, regardless of whether they act on behalf
of a state, county, municipality or other governmental unit and which facilitates,
causes, or is involved in the placement of a child from one state to another.
S. "Receiving
state" means the state to which a child is sent, brought, or caused to be
sent or brought.
T. "Relative" means someone who is related to the child as a parent,
stepparent, sibling by half or whole blood or by adoption, grandparent, aunt,
uncle, or first cousin or a nonrelative with such significant ties to the
child that they may be regarded as relatives as determined by the court in
the sending state.
U. "Residential Facility" means a facility providing a level of
care that is sufficient to substitute for parental responsibility or foster
care and is beyond what is needed for assessment or treatment of an acute
condition. For purposes of the compact, residential facilities do not include
institutions primarily educational in character, hospitals, or other medical
facilities.
V. "Rule" means a written directive, mandate, standard, or principle
issued by the Interstate Commission promulgated pursuant to Article XI of
this compact that is of general applicability and that implements, interprets,
or prescribes a policy or provision of the compact. "Rule" has the force and
effect of an administrative rule in a member state, and includes the amendment,
repeal, or suspension of an existing rule.
W. "Sending state" means the state from
which the placement of a child is initiated.
X. "Service member's permanent
duty station" means the military installation where an active duty Armed Services
member is currently assigned and is physically located under competent orders
that do not specify the duty as temporary.
Y. "Service member's state of legal residence"
means the state in which the active duty Armed Services member is considered
a resident for tax and voting purposes.
Z. "State" means a state of the United States,
the District of Columbia, the Commonwealth of Puerto Rico, the U.S. Virgin
Islands, Guam, American Samoa, the Northern Mariana Islands, and any other
territory of the United States.
AA. "State court" means a judicial body
of a state that is vested by law with responsibility for adjudicating cases
involving abuse, neglect, deprivation, delinquency, or status offenses of
individuals who have not attained the age of eighteen (18).
BB. "Supervision"
means monitoring provided by the receiving state once a child has been placed
in a receiving state pursuant to this compact.
ARTICLE III. APPLICABILITY
A. Except as
otherwise provided in Article III, Section B, this compact shall apply to:
1. The interstate
placement of a child subject to ongoing court jurisdiction in the sending
state, due to allegations or findings that the child has been abused, neglected,
or deprived as defined by the laws of the sending state, provided, however,
that the placement of such a child into a residential facility shall only
require notice of residential placement to the receiving state prior to placement.
2. The interstate
placement of a child adjudicated delinquent or unmanageable based on the laws
of the sending state and subject to ongoing court jurisdiction of the sending
state if:
a. the child is being placed in a residential facility in another
member state and is not covered under another compact; or
b. the child
is being placed in another member state and the determination of safety and
suitability of the placement and services required is not provided through
another compact.
3. The interstate placement of any child by a public child-placing
agency or private child-placing agency as defined in this compact as a preliminary
step to a possible adoption.
B. The provisions of this compact shall
not apply to:
1. The interstate placement of a child in a custody proceeding in
which a public child-placing agency is not a party, provided the placement
is not intended to effectuate an adoption.
2. The interstate placement of a child with
a nonrelative in a receiving state by a parent with the legal authority to
make such a placement provided, however, that the placement is not intended
to effectuate an adoption.
3. The interstate placement of a child by
one relative with the lawful authority to make such a placement directly with
a relative in a receiving state.
4. The placement of a child, not subject
to Article III, Section A, into a residential facility by his or her parent.
5. The placement
of a child with a noncustodial parent provided that:
a. The noncustodial parent
proves to the satisfaction of a court in the sending state a substantial relationship
with the child; and
b. The court in the sending state makes a written finding that placement
with the noncustodial parent is in the best interests of the child; and
c. The court
in the sending state dismisses its jurisdiction in interstate placements in
which the public child-placing agency is a party to the proceeding.
6. A child
entering the United States from a foreign country for the purpose of adoption
or leaving the United States to go to a foreign country for the purpose of
adoption in that country.
7. Cases in which a U.S. citizen child living overseas with his
family, at least one of whom is in the U.S. Armed Services, and who is stationed
overseas, is removed and placed in a state.
8. The sending of a child by a public child-placing
agency or a private child-placing agency for a visit as defined by the rules
of the Interstate Commission.
C. For purposes of determining the applicability
of this compact to the placement of a child with a family in the Armed Services,
the public child-placing agency or private child-placing agency may choose
the state of the service member's permanent duty station or the service member's
declared legal residence.
D. Nothing in this compact shall be construed to prohibit the concurrent
application of the provisions of this compact with other applicable interstate
compacts, including the Interstate Compact for Juveniles and the Interstate
Compact on Adoption and Medical Assistance. The Interstate Commission may
in cooperation with other interstate compact commissions having responsibility
for the interstate movement, placement, or transfer of children, promulgate
like rules to ensure the coordination of services, timely placement of children,
and the reduction of unnecessary or duplicative administrative or procedural
requirements.
ARTICLE IV. JURISDICTION
A. Except as provided in Article IV, Section
H, and Article V, Section B, paragraph two and three, concerning private and
independent adoptions, and in interstate placements in which the public child-placing
agency is not a party to a custody proceeding, the sending state shall retain
jurisdiction over a child with respect to all matters of custody and disposition
of the child which it would have had if the child had remained in the sending
state. Such jurisdiction shall also include the power to order the return
of the child to the sending state.
B. When an issue of child protection or
custody is brought before a court in the receiving state, such court shall
confer with the court of the sending state to determine the most appropriate
forum for adjudication.
C. In cases that are before courts and subject to this compact,
the taking of testimony for hearings before any judicial officer may occur
in person or by telephone, audio-video conference, or such other means as
approved by the rules of the Interstate Commission; and Judicial officers
may communicate with other judicial officers and persons involved in the interstate
process as may be permitted by their Canons of Judicial Conduct and any rules
promulgated by the Interstate Commission.
D. In accordance with its own laws, the
court in the sending state shall have authority to terminate its jurisdiction
if:
1. The child is reunified with the parent in the receiving state
who is the subject of allegations or findings of abuse or neglect, only with
the concurrence of the public child-placing agency in the receiving state;
or
2. The child is adopted; or
3. The child reaches the age of majority
under the laws of the sending state; or
4. The child achieves legal independence
pursuant to the laws of the sending state; or
5. A guardianship is created
by a court in the receiving state with the concurrence of the court in the
sending state; or
6. An Indian tribe has petitioned for and received jurisdiction
from the court in the sending state; or
7. The public child-placing agency of the
sending state requests termination and has obtained the concurrence of the
public child-placing agency in the receiving state.
E. When a sending state
court terminates its jurisdiction, the receiving state child-placing agency
shall be notified.
F. Nothing in this article shall defeat a claim of jurisdiction
by a receiving state court sufficient to deal with an act of truancy, delinquency,
crime, or behavior involving a child as defined by the laws of the receiving
state committed by the child in the receiving state which would be a violation
of its laws.
G. Nothing in this article shall limit the receiving state's ability
to take emergency jurisdiction for the protection of the child.
H. The substantive
laws of the state in which an adoption will be finalized shall solely govern
all issues relating to the adoption of the child and the court in which the
adoption proceeding is filed shall have subject matter jurisdiction regarding
all substantive issues relating to the adoption, except:
1. when the
child is a ward of another court that established jurisdiction over the child
prior to the placement; or
2. when the child is in the legal custody
of a public agency in the sending state; or
3. when a court in the sending state has
otherwise appropriately assumed jurisdiction over the child, prior to the
submission of the request for approval of placement.
I. A final decree of adoption
shall not be entered in any jurisdiction until the placement is authorized
as an "approved placement" by the public child-placing agency in the receiving
state.
ARTICLE V. PLACEMENT EVALUATION
A. Prior to sending, bringing, or causing
a child to be sent or brought into a receiving state, the public child-placing
agency shall provide a written request for assessment to the receiving state.
B. For placements
by a private child-placing agency, a child may be sent or brought, or caused
to be sent or brought, into a receiving state, upon receipt and immediate
review of the required content in a request for approval of a placement in
both the sending and receiving state public child-placing agency. The required
content to accompany a request for approval shall include all of the following:
1. A request
for approval identifying the child, the birth parent(s), the prospective adoptive
parent(s), and the supervising agency, signed by the person requesting approval;
and
2. The appropriate consents or relinquishments signed by the birth
parents in accordance with the laws of the sending state, or, where permitted,
the laws of the state where the adoption will be finalized; and
3. Certification
by a licensed attorney or authorized agent of a private adoption agency that
the consent or relinquishment is in compliance with the applicable laws of
the sending state, or where permitted the laws of the state where finalization
of the adoption will occur; and
4. A home study; and
5. An acknowledgment
of legal risk signed by the prospective adoptive parents.
C. The sending
state and the receiving state may request additional information or documents
prior to finalization of an approved placement, but they may not delay travel
by the prospective adoptive parents with the child if the required content
for approval has been submitted, received, and reviewed by the public child-placing
agency in both the sending state and the receiving state.
D. Approval
from the public child-placing agency in the receiving state for a provisional
or approved placement is required as provided for in the rules of the Interstate
Commission.
E. The procedures for making and the request for an assessment
shall contain all information and be in such form as provided for in the rules
of the Interstate Commission.
F. Upon receipt of a request from the public
child-placing agency of the sending state, the receiving state shall initiate
an assessment of the proposed placement to determine its safety and suitability.
If the proposed placement is a placement with a relative, the public child-placing
agency of the sending state may request a determination for a provisional
placement.
G. The public child-placing agency in the receiving state may request
from the public child-placing agency or the private child-placing agency in
the sending state, and shall be entitled to receive supporting or additional
information necessary to complete the assessment or approve the placement.
H. The public
child-placing agency in the receiving state shall approve a provisional placement
and complete or arrange for the completion of the assessment within the timeframes
established by the rules of the Interstate Commission.
I. For a placement
by a private child-placing agency, the sending state shall not impose any
additional requirements to complete the home study that are not required by
the receiving state, unless the adoption is finalized in the sending state.
J. The Interstate
Commission may develop uniform standards for the assessment of the safety
and suitability of interstate placements.
ARTICLE VI. PLACEMENT AUTHORITY
A. Except
as otherwise provided in this compact, no child subject to this compact shall
be placed into a receiving state until approval for such placement is obtained.
B. If the
public child-placing agency in the receiving state does not approve the proposed
placement then the child shall not be placed. The receiving state shall provide
written documentation of any such determination in accordance with the rules
promulgated by the Interstate Commission. Such determination is not subject
to judicial review in the sending state.
C. If the proposed placement is not approved,
any interested party shall have standing to seek an administrative review
of the receiving state's determination.
1. The administrative review and any further
judicial review associated with the determination shall be conducted in the
receiving state pursuant to its applicable administrative procedures act.
2. If a determination
not to approve the placement of the child in the receiving state is overturned
upon review, the placement shall be deemed approved, provided, however, that
all administrative or judicial remedies have been exhausted or the time for
such remedies has passed.
ARTICLE VII. PLACING AGENCY RESPONSIBILITY
A. For the interstate
placement of a child made by a public child-placing agency or state court:
1. The public
child-placing agency in the sending state shall have financial responsibility
for:
a. the ongoing support and maintenance for the child during the
period of the placement, unless otherwise provided for in the receiving state;
and
b. as determined by the public child-placing agency in the sending
state, services for the child beyond the public services for which the child
is eligible in the receiving state.
2. The receiving state shall only have
financial responsibility for:
a. any assessment conducted by the receiving
state; and
b. supervision conducted by the receiving state at the level necessary
to support the placement as agreed upon by the public child-placing agencies
of the receiving and sending state.
3. Nothing in this provision shall prohibit
public child-placing agencies in the sending state from entering into agreements
with licensed agencies or persons in the receiving state to conduct assessments
and provide supervision.
B. For the placement of a child by a private child-placing agency
preliminary to a possible adoption, the private child-placing agency shall
be:
1. Legally responsible for the child during the period of placement
as provided for in the law of the sending state until the finalization of
the adoption.
2. Financially responsible for the child absent a contractual agreement
to the contrary.
C. The public child-placing agency in the receiving state shall
provide timely assessments, as provided for in the rules of the Interstate
Commission.
D. The public child-placing agency in the receiving state shall
provide, or arrange for the provision of, supervision and services for the
child, including timely reports, during the period of the placement.
E. Nothing
in this compact shall be construed as to limit the authority of the public
child-placing agency in the receiving state from contracting with a licensed
agency or person in the receiving state for an assessment or the provision
of supervision or services for the child or otherwise authorizing the provision
of supervision or services by a licensed agency during the period of placement.
F. Each member
state shall provide for coordination among its branches of government concerning
the state's participation in, and compliance with, the compact and Interstate
Commission activities, through the creation of an advisory council or use
of an existing body or board.
G. Each member state shall establish a
central state compact office, which shall be responsible for state compliance
with the compact and the rules of the Interstate Commission.
H. The public
child-placing agency in the sending state shall oversee compliance with the
provisions of the Indian Child Welfare Act, 25 U.S.C. 1901, et seq., for placements
subject to the provisions of this compact, prior to placement.
I. With the
consent of the Interstate Commission, states may enter into limited agreements
that facilitate the timely assessment and provision of services and supervision
of placements under this compact.
ARTICLE VIII. INTERSTATE COMMISSION FOR
THE PLACEMENT OF CHILDREN
The member states hereby establish, by way of this compact, a commission
known as the "Interstate Commission for the Placement of Children." The activities
of the Interstate Commission are the formation of public policy and are a
discretionary state function. The Interstate Commission shall:
A. Be a joint
commission of the member states and shall have the responsibilities, powers
and duties set forth herein, and such additional powers as may be conferred
upon it by subsequent concurrent action of the respective legislatures of
the member states.
B. Consist of one commissioner from each member state who shall
be appointed by the executive head of the state human services administration
with ultimate responsibility for the child welfare program. The appointed
commissioner shall have the legal authority to vote on policy related matters
governed by this compact binding the state.
1. Each member state represented at a meeting
of the Interstate Commission is entitled to one vote.
2. A majority of the
member states shall constitute a quorum for the transaction of business, unless
a larger quorum is required by the bylaws of the Interstate Commission.
3. A representative
shall not delegate a vote to another member state.
4. A representative may
delegate voting authority to another person from their state for a specified
meeting.
C. In addition to the commissioners of each member state, the Interstate
Commission shall include persons who are members of interested organizations
as defined in the bylaws or rules of the Interstate Commission. Such members
shall be ex officio and shall not be entitled to vote on any matter before
the Interstate Commission.
D. Establish an executive committee which
shall have the authority to administer the day-to-day operations and administration
of the Interstate Commission. It shall not have the power to engage in rulemaking.
ARTICLE IX.
POWERS AND DUTIES OF THE INTERSTATE COMMISSION
The Interstate Commission
shall have the following powers:
A. To promulgate rules and take all necessary
actions to effect the goals, purposes, and obligations as enumerated in this
compact.
B. To provide for dispute resolution among member states.
C. To issue,
upon request of a member state, advisory opinions concerning the meaning or
interpretation of the interstate compact, its bylaws, rules, or actions.
D. To enforce
compliance with this compact or the bylaws or rules of the Interstate Commission
pursuant to Article XII of this compact.
E. To collect standardized data concerning
the interstate placement of children subject to this compact as directed through
its rules which shall specify the data to be collected, the means of collection
and data exchange and reporting requirements.
F. To establish and maintain
offices as may be necessary for the transacting of its business.
G. To purchase
and maintain insurance and bonds.
H. To hire or contract for services of
personnel or consultants as necessary to carry out its functions under the
compact and establish personnel qualification policies, and rates of compensation.
I. To establish
and appoint committees and officers, including, but not limited to, an executive
committee as required by Article X of this compact.
J. To accept any and
all donations and grants of money, equipment, supplies, materials, and services,
and to receive, utilize, and dispose thereof.
K. To lease, purchase,
accept contributions or donations of, or otherwise to own, hold, improve,
or use any property, real, personal, or mixed.
L. To sell, convey, mortgage,
pledge, lease, exchange, abandon, or otherwise dispose of any property, real,
personal, or mixed.
M. To establish a budget and make expenditures.
N. To adopt
a seal and bylaws governing the management and operation of the Interstate
Commission.
O. To report annually to the legislatures, governors, the judiciary,
and state advisory councils of the member states concerning the activities
of the Interstate Commission during the preceding year. Such reports shall
also include any recommendations that may have been adopted by the Interstate
Commission.
P. To coordinate and provide education, training and public awareness
regarding the interstate movement of children for officials involved in such
activity.
Q. To maintain books and records in accordance with the bylaws
of the Interstate Commission.
R. To perform such functions as may be
necessary or appropriate to achieve the purposes of this compact.
ARTICLE X.
ORGANIZATION AND OPERATION OF THE INTERSTATE COMMISSION
A. Bylaws
1. Within
twelve months after the first Interstate Commission meeting, the Interstate
Commission shall adopt bylaws to govern its conduct as may be necessary or
appropriate to carry out the purposes of the compact.
2. The Interstate Commission's
bylaws and rules shall establish conditions and procedures under which the
Interstate Commission shall make its information and official records available
to the public for inspection or copying. The Interstate Commission may exempt
from disclosure information or official records to the extent they would adversely
affect personal privacy rights or proprietary interests.
B. Meetings
1. The Interstate
Commission shall meet at least once each calendar year. The chairperson may
call additional meetings and, upon the request of a simple majority of the
member states shall call additional meetings.
2. Public notice shall
be given by the Interstate Commission of all meetings and all meetings shall
be open to the public, except as set forth in the rules or as otherwise provided
in the compact. The Interstate Commission and its committees may close a meeting,
or portion thereof, where it determines by two-thirds vote that an open meeting
would be likely to:
a. relate solely to the Interstate Commission's internal personnel
practices and procedures; or
b. disclose matters specifically exempted
from disclosure by federal law; or
c. disclose financial or commercial information
which is privileged, proprietary, or confidential in nature; or
d. involve
accusing a person of a crime, or formally censuring a person; or
e. disclose
information of a personal nature where disclosure would constitute a clearly
unwarranted invasion of personal privacy or physically endanger one or more
persons; or
f. disclose investigative records compiled for law enforcement
purposes; or
g. specifically relate to the Interstate Commission's participation
in a civil action or other legal proceeding.
3. For a meeting, or
portion of a meeting, closed pursuant to this provision, the Interstate Commission's
legal counsel or designee shall certify that the meeting may be closed and
shall reference each relevant exemption provision. The Interstate Commission
shall keep minutes which shall fully and clearly describe all matters discussed
in a meeting and shall provide a full and accurate summary of actions taken,
and the reasons therefor, including a description of the views expressed and
the record of a roll call vote. All documents considered in connection with
an action shall be identified in such minutes. All minutes and documents of
a closed meeting shall remain under seal, subject to release by a majority
vote of the Interstate Commission or by court order.
4. The bylaws may provide
for meetings of the Interstate Commission to be conducted by telecommunication
or other electronic communication.
C. Officers and Staff
1. The Interstate
Commission may, through its executive committee, appoint or retain a staff
director for such period, upon such terms and conditions and for such compensation
as the Interstate Commission may deem appropriate. The staff director shall
serve as secretary to the Interstate Commission, but shall not have a vote.
The staff director may hire and supervise such other staff as may be authorized
by the Interstate Commission.
2. The Interstate Commission shall elect,
from among its members, a chairperson and a vice-chairperson of the executive
committee and other necessary officers, each of whom shall have such authority
and duties as may be specified in the bylaws.
D. Qualified Immunity,
Defense and Indemnification
1. The Interstate Commission's staff director
and its employees shall be immune from suit and liability, either personally
or in their official capacity, for a claim for damage to or loss of property
or personal injury or other civil liability caused or arising out of or relating
to an actual or alleged act, error, or omission that occurred, or that such
person had a reasonable basis for believing occurred within the scope of Commission
employment, duties, or responsibilities; provided, that such person shall
not be protected from suit or liability for damage, loss, injury, or liability
caused by a criminal act or the intentional or willful and wanton misconduct
of such person.
a. The liability of the Interstate Commission's staff director
and employees or Interstate Commission representatives, acting within the
scope of such person's employment or duties for acts, errors, or omissions
occurring within such person's state may not exceed the limits of liability
set forth under the Constitution and laws of that state for state officials,
employees, and agents. The Interstate Commission is considered to be an instrumentality
of the states for the purposes of any such action. Nothing in this subsection
shall be construed to protect such person from suit or liability for damage,
loss, injury, or liability caused by a criminal act or the intentional or
willful and wanton misconduct of such person.
b. The Interstate Commission
shall defend the staff director and its employees and, subject to the approval
of the Attorney General or other appropriate legal counsel of the member state
shall defend the commissioner of a member state in a civil action seeking
to impose liability arising out of an actual or alleged act, error, or omission
that occurred within the scope of Interstate Commission employment, duties,
or responsibilities, or that the defendant had a reasonable basis for believing
occurred within the scope of Interstate Commission employment, duties, or
responsibilities, provided that the actual or alleged act, error, or omission
did not result from intentional or willful and wanton misconduct on the part
of such person.
c. To the extent not covered by the state involved, member state,
or the Interstate Commission, the representatives or employees of the Interstate
Commission shall be held harmless in the amount of a settlement or judgment,
including attorney's fees and costs, obtained against such persons arising
out of an actual or alleged act, error, or omission that occurred within the
scope of Interstate Commission employment, duties, or responsibilities, or
that such persons had a reasonable basis for believing occurred within the
scope of Interstate Commission employment, duties, or responsibilities, provided
that the actual or alleged act, error, or omission did not result from intentional
or willful and wanton misconduct on the part of such persons.
ARTICLE XI.
RULEMAKING FUNCTIONS OF THE INTERSTATE COMMISSION
A. The Interstate Commission
shall promulgate and publish rules in order to effectively and efficiently
achieve the purposes of the compact.
B. Rulemaking shall occur pursuant to the
criteria set forth in this article and the bylaws and rules adopted pursuant
thereto. Such rulemaking shall substantially conform to the principles of
the "Model State Administrative Procedures Act," 1981 Act, Uniform Laws Annotated,
Vol. 15, p. 1 (2000), or such other administrative procedure acts as the Interstate
Commission deems appropriate consistent with due process requirements under
the United States Constitution as now or hereafter interpreted by the United
States Supreme Court. All rules and amendments shall become binding as of
the date specified, as published with the final version of the rule as approved
by the Interstate Commission.
C. When promulgating a rule, the Interstate
Commission shall, at a minimum:
1. Publish the proposed rule's entire text
stating the reason(s) for that proposed rule; and
2. Allow and invite any
and all persons to submit written data, facts, opinions, and arguments, which
information shall be added to the record, and be made publicly available;
and
3. Promulgate a final rule and its effective date, if appropriate,
based on input from state or local officials, or interested parties.
D. Rules promulgated
by the Interstate Commission shall have the force and effect of administrative
rules and shall be binding in the compacting states to the extent and in the
manner provided for in this compact.
E. Not later than sixty days after a rule
is promulgated, an interested person may file a petition in the U.S. District
Court for the District of Columbia or in the Federal District Court where
the Interstate Commission's principal office is located for judicial review
of such rule. If the court finds that the Interstate Commission's action is
not supported by substantial evidence in the rulemaking record, the court
shall hold the rule unlawful and set it aside.
F. If a majority of the
legislatures of the member states rejects a rule, those states may by enactment
of a statute or resolution in the same manner used to adopt the compact cause
that such rule shall have no further force and effect in any member state.
G. The existing
rules governing the operation of the Interstate Compact on the Placement of
Children superseded by this compact shall be null and void no less than twelve
but no more than twenty-four months after the first meeting of the Interstate
Commission created hereunder, as determined by the members during the first
meeting.
H. Within the first twelve months of operation, the Interstate
Commission shall promulgate rules addressing the following:
1. Transition
rules
2. Forms and procedures
3. Timelines
4. Data collection and
reporting
5. Rulemaking
6. Visitation
7. Progress reports/supervision
8. Sharing of information/confidentiality
9. Financing
of the Interstate Commission
10. Mediation, arbitration, and dispute
resolution
11. Education, training, and technical assistance
12. Enforcement
13. Coordination
with other interstate compacts
I. Upon determination by a majority of
the members of the Interstate Commission that an emergency exists:
1. The Interstate
Commission may promulgate an emergency rule only if it is required to:
a. Protect
the children covered by this compact from an imminent threat to their health,
safety and well-being; or
b. Prevent loss of federal or state funds; or
c. Meet a
deadline for the promulgation of an administrative rule required by federal
law.
2. An emergency rule shall become effective immediately upon adoption,
provided that the usual rulemaking procedures provided hereunder shall be
retroactively applied to said rule as soon as reasonably possible, but no
later than ninety days after the effective date of the emergency rule.
3. An emergency
rule shall be promulgated as provided for in the rules of the Interstate Commission.
ARTICLE XII.
OVERSIGHT, DISPUTE RESOLUTION, ENFORCEMENT
A. Oversight
1. The Interstate Commission
shall oversee the administration and operation of the compact.
2. The executive,
legislative and judicial branches of state government in each member state
shall enforce this compact and the rules of the Interstate Commission and
shall take all actions necessary and appropriate to effectuate the compact's
purposes and intent. The compact and its rules shall be binding in the compacting
states to the extent and in the manner provided for in this compact.
3. All courts
shall take judicial notice of the compact and the rules in any judicial or
administrative proceeding in a member state pertaining to the subject matter
of this compact.
4. The Interstate Commission shall be entitled to receive service
of process in any action in which the validity of a compact provision or rule
is the issue for which a judicial determination has been sought and shall
have standing to intervene in any proceedings. Failure to provide service
of process to the Interstate Commission shall render any judgment, order or
other determination, however so captioned or classified, void as to the Interstate
Commission, this compact, its bylaws or rules of the Interstate Commission.
B. Dispute
Resolution
1. The Interstate Commission shall attempt, upon the request of
a member state, to resolve disputes which are subject to the compact and which
may arise among member states and between member and nonmember states.
2. The Interstate
Commission shall promulgate a rule providing for both mediation and binding
dispute resolution for disputes among compacting states. The costs of such
mediation or dispute resolution shall be the responsibility of the parties
to the dispute.
C. Enforcement
1. If the Interstate Commission determines that a member state
has defaulted in the performance of its obligations or responsibilities under
this compact, its bylaws, or rules, the Interstate Commission may:
a. Provide
remedial training and specific technical assistance; or
b. Provide
written notice to the defaulting state and other member states, of the nature
of the default and the means of curing the default. The Interstate Commission
shall specify the conditions by which the defaulting state must cure its default;
or
c. By majority vote of the members, initiate against a defaulting
member state legal action in the United States District Court for the District
of Columbia or, at the discretion of the Interstate Commission, in the federal
district where the Interstate Commission has its principal office, to enforce
compliance with the provisions of the compact, its bylaws or rules. The relief
sought may include both injunctive relief and damages. In the event judicial
enforcement is necessary the prevailing party shall be awarded all costs of
such litigation including reasonable attorney's fees; or
d. Avail itself
of any other remedies available under state law or the regulation of official
or professional conduct.
ARTICLE XIII. FINANCING OF THE COMMISSION
A. The Interstate Commission
shall pay, or provide for the payment of the reasonable expenses of its establishment,
organization, and ongoing activities.
B. The Interstate Commission may levy on
and collect an annual assessment from each member state to cover the cost
of the operations and activities of the Interstate Commission and its staff
which must be in a total amount sufficient to cover the Interstate Commission's
annual budget as approved by its members each year. The aggregate annual assessment
amount shall be allocated based upon a formula to be determined by the Interstate
Commission which shall promulgate a rule binding upon all member states.
C. The Interstate
Commission shall not incur obligations of any kind prior to securing the funds
adequate to meet the same; nor shall the Interstate Commission pledge the
credit of any of the member states, except by and with the authority of the
member state.
D. The Interstate Commission shall keep accurate accounts of all
receipts and disbursements. The receipts and disbursements of the Interstate
Commission shall be subject to the audit and accounting procedures established
under its bylaws. However, all receipts and disbursements of funds handled
by the Interstate Commission shall be audited yearly by a certified or licensed
public accountant and the report of the audit shall be included in and become
part of the annual report of the Interstate Commission.
ARTICLE XIV.
MEMBER STATES, EFFECTIVE DATE, AND AMENDMENT
A. Any state is eligible
to become a member state.
B. The compact shall become effective and binding upon legislative
enactment of the compact into law by no less than thirty-five states. The
effective date shall be the later of July 1, 2007, or upon enactment of the
compact into law by the thirty-fifth state. Thereafter it shall become effective
and binding as to any other member state upon enactment of the compact into
law by that state. The executive heads of the state human services administration
with ultimate responsibility for the child welfare program of nonmember states
or their designees shall be invited to participate in the activities of the
Interstate Commission on a nonvoting basis prior to adoption of the compact
by all states.
C. The Interstate Commission may propose amendments to the compact
for enactment by the member states. No amendment shall become effective and
binding on the member states unless and until it is enacted into law by unanimous
consent of the member states.
ARTICLE XV. WITHDRAWAL AND DISSOLUTION
A. Withdrawal
1. Once effective,
the compact shall continue in force and remain binding upon each and every
member state; provided that a member state may withdraw from the compact specifically
repealing the statute which enacted the compact into law.
2. Withdrawal
from this compact shall be by the enactment of a statute repealing the same.
The effective date of withdrawal shall be the effective date of the repeal
of the statute.
3. The withdrawing state shall immediately notify the president
of the Interstate Commission in writing upon the introduction of legislation
repealing this compact in the withdrawing state. The Interstate Commission
shall then notify the other member states of the withdrawing state's intent
to withdraw.
4. The withdrawing state is responsible for all assessments, obligations,
and liabilities incurred through the effective date of withdrawal.
5. Reinstatement
following withdrawal of a member state shall occur upon the withdrawing state
reenacting the compact or upon such later date as determined by the members
of the Interstate Commission.
B. Dissolution of compact
1. This compact
shall dissolve effective upon the date of the withdrawal or default of the
member state which reduces the membership in the compact to one member state.
2. Upon the
dissolution of this compact, the compact becomes null and void and shall be
of no further force or effect, and the business and affairs of the Interstate
Commission shall be concluded and surplus funds shall be distributed in accordance
with the bylaws.
ARTICLE XVI. SEVERABILITY AND CONSTRUCTION
A. The provisions of
this compact shall be severable, and if any phrase, clause, sentence, or provision
is deemed unenforceable, the remaining provisions of the compact shall be
enforceable.
B. The provisions of this compact shall be liberally construed
to effectuate its purposes.
C. Nothing in this compact shall be construed
to prohibit the concurrent applicability of other interstate compacts to which
the states are members.
ARTICLE XVII. BINDING EFFECT OF COMPACT AND OTHER LAWS
A. Other Laws
1. Nothing
herein prevents the enforcement of any other law of a member state that is
not inconsistent with this compact.
B. Binding Effect of the compact
1. All lawful
actions of the Interstate Commission, including all rules and bylaws promulgated
by the Interstate Commission, are binding upon the member states.
2. All agreements
between the Interstate Commission and the member states are binding in accordance
with their terms.
3. In the event any provision of this compact exceeds the constitutional
limits imposed on the legislature of any member state, such provision shall
be ineffective to the extent of the conflict with the constitutional provision
in question in that member state.
ARTICLE XVIII. INDIAN TRIBES
Notwithstanding
any other provision in this compact, the Interstate Commission may promulgate
guidelines to permit Indian tribes to utilize the compact to achieve any or
all of the purposes of the compact as specified in Article I of this compact.
The Interstate Commission shall make reasonable efforts to consult with Indian
tribes in promulgating guidelines to reflect the diverse circumstances of
the various Indian tribes.

Legislative History

Source: Laws 2009, LB237, § 3. Cross References: Administrative Procedure Act, see section 84-920. Interstate Compact for Juveniles, see section 43-1011.