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NE ST § 43-1103
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Neb.Rev.St. § 43-1103
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West's Revised Statutes of Nebraska Annotated Currentness
Chapter 43. Infants and Juveniles
Article 11. Interstate Compact for the Placement of Children
43-1103.
Interstate Compact for the Placement of Children
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/
8. Sharing of information/
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.
CREDIT(S)
Laws
2009, LB 237, § 3, eff. Aug. 30,
2009.
Neb. Rev. St. § 43-1103, NE ST § 43-1103