HB4623 95TH GENERAL ASSEMBLY

LRB095 15988 AJO 42000 b

95TH GENERAL ASSEMBLY
State of Illinois
2007 and 2008
HB4623

Introduced , by Rep. Sara Feigenholtz

SYNOPSIS AS INTRODUCED:

750 ILCS 50/18.3a

from Ch. 40, par. 1522.3a

Amends the Adoption Act. Provides that a confidential intermediary has access to vital records maintained by the Department of Public Health and its designees or another state's comparable public entity (instead of the Department of Public Health and its designees) and all court or adoption agency records which relate to an adoption, a surrendered person, or relatives of the parties involved in the adoption or surrender. Provides that the confidential intermediary may provide an eligible petitioner with information about the agency that had legal custody of or responsibility for the surrendered person. Provides that the confidential intermediary may inform petitioners of the state in which the surrender or the adoption occurred. Provides that if the petitioner is an adult who was adopted or surrendered or the adoptive parent or guardian of an adopted or surrendered person under the age of 21, any non-identifying information learned during the search may be given to the petitioner at any time during the search before the case is closed (instead of before the case is closed).

A BILL FOR

AN ACT concerning civil law.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 5. The Adoption Act is amended by changing Section 18.3a as follows:

(750 ILCS 50/18.3a) (from Ch. 40, par. 1522.3a)

Sec. 18.3a. Confidential intermediary.

(a) General purposes. Notwithstanding any other provision of this Act, any adopted or surrendered person 21 years of age or over, any adoptive parent or legal guardian of an adopted or surrendered person under the age of 21, or any birth parent of an adopted or surrendered person who is 21 years of age or over may petition the court in any county in the State of Illinois for appointment of a confidential intermediary as provided in this Section for the purpose of exchanging medical information with one or more mutually consenting biological relatives, obtaining identifying information about one or more mutually consenting biological relatives, or arranging contact with one or more mutually consenting biological relatives. Additionally, in cases where an adopted or surrendered person is deceased, an adult child of the adopted or surrendered person or his or her adoptive parents or surviving spouse may file a petition under this Section and in cases where the birth parent is deceased, an adult birth sibling of the adopted or surrendered person or of the deceased birth parent may file a petition under this Section for the purpose of exchanging medical information with one or more mutually consenting biological relatives of the adopted or surrendered person, obtaining identifying information about one or more mutually consenting biological relatives of the adopted or surrendered person, or arranging contact with one or more mutually consenting biological relatives of the adopted or surrendered person. Beginning January 1, 2006, any adopted or surrendered person 21 years of age or over; any adoptive parent or legal guardian of an adopted or surrendered person under the age of 21; any birth parent, birth sibling, birth aunt, or birth uncle of an adopted or surrendered person over the age of 21; any surviving child, adoptive parent, or surviving spouse of a deceased adopted or surrendered person who wishes to petition the court for the appointment of a confidential intermediary shall be required to accompany their petition with proof of registration with the Illinois Adoption Registry and Medical Information Exchange.

(b) Petition. Upon petition by an adopted or surrendered person 21 years of age or over, an adoptive parent or legal guardian of an adopted or surrendered person under the age of 21, or a birth parent of an adopted or surrendered person who is 21 years of age or over, the court shall appoint a confidential intermediary. Upon petition by an adult child, adoptive parent or surviving spouse of an adopted or surrendered person who is deceased, by an adult birth sibling of an adopted or surrendered person whose common birth parent is deceased and whose adopted or surrendered birth sibling is 21 years of age or over, or by an adult sibling of a birth parent who is deceased, and whose surrendered child is 21 years of age or over, the court may appoint a confidential intermediary if the court finds that the disclosure is of greater benefit than nondisclosure. The petition shall state which biological relative or relatives are being sought and shall indicate if the petitioner wants to do any one or more of the following: exchange medical information with the biological relative or relatives, obtain identifying information from the biological relative or relatives, or to arrange contact with the biological relative.

(c) Order. The order appointing the confidential intermediary shall allow that intermediary to conduct a search for the sought-after relative by accessing those records described in subsection (g) of this Section.

(d) Fees and expenses. The court shall condition the appointment of the confidential intermediary on the petitioner's payment of the intermediary's fees and expenses in advance of the commencement of the work of the confidential intermediary.

(e) Eligibility of intermediary. The court may appoint as confidential intermediary any person certified by the Department of Children and Family Services as qualified to serve as a confidential intermediary. Certification shall be dependent upon the confidential intermediary completing a course of training including, but not limited to, applicable federal and State privacy laws.

(f) Confidential Intermediary Council. There shall be established under the Department of Children and Family Services a Confidential Intermediary Advisory Council. One member shall be an attorney representing the Attorney General's Office appointed by the Attorney General. One member shall be a currently certified confidential intermediary appointed by the Director of the Department of Children and Family Services. The Director shall also appoint 5 additional members. When making those appointments, the Director shall consider advocates for adopted persons, adoptive parents, birth parents, lawyers who represent clients in private adoptions, lawyers specializing in privacy law, and representatives of agencies involved in adoptions. The Director shall appoint one of the 7 members as the chairperson. An attorney from the Department of Children and Family Services and the person directly responsible for administering the confidential intermediary program shall serve as ex-officio, non-voting advisors to the Council. Council members shall serve at the discretion of the Director and shall receive no compensation other than reasonable expenses approved by the Director. The Council shall meet no less than twice yearly, and shall make recommendations to the Director regarding the development of rules, procedures, and forms that will ensure efficient and effective operation of the confidential intermediary process, including:

(1) Standards for certification for confidential intermediaries.

(2) Oversight of methods used to verify that intermediaries are complying with the appropriate laws.

(3) Training for confidential intermediaries, including training with respect to federal and State privacy laws.

(4) The relationship between confidential intermediaries and the court system, including the development of sample orders defining the scope of the intermediaries' access to information.

(5) Any recent violations of policy or procedures by confidential intermediaries and remedial steps, including decertification, to prevent future violations.

(g) Access. Subject to the limitations of subsection (i) of this Section, the confidential intermediary shall have access to vital records maintained by the Department of Public Health and its local designees for the maintenance of vital records or a comparable public entity that maintains vital records in another state in accordance with that state's laws and all records of the court or any adoption agency, public or private, as limited in this Section, which relate to the adoption or the identity and location of an adopted or surrendered person, of an adult child or surviving spouse of a deceased adopted or surrendered person, or of a birth parent, birth sibling, or the sibling of a deceased birth parent. The confidential intermediary shall not have access to any personal health information protected by the Standards for Privacy of Individually Identifiable Health Information adopted by the U.S. Department of Health and Human Services under the Health Insurance Portability and Accountability Act of 1996 unless the confidential intermediary has obtained written consent from the person whose information is being sought or, if that person is a minor child, that person's parent or guardian. Confidential intermediaries shall be authorized to inspect confidential relinquishment and adoption records. The confidential intermediary shall not be authorized to access medical records, financial records, credit records, banking records, home studies, attorney file records, or other personal records. In cases where a birth parent is being sought, an adoption agency shall inform the confidential intermediary of any statement filed pursuant to Section 18.3, hereinafter referred to as "the 18.3 statement", indicating a desire of the surrendering birth parent to have identifying information shared or to not have identifying information shared. If there was a clear statement of intent by the sought-after birth parent not to have identifying information shared, the confidential intermediary shall discontinue the search and inform the petitioning party of the sought-after relative's intent. Information provided to the confidential intermediary by an adoption agency shall be restricted to the full name, date of birth, place of birth, last known address, last known telephone number of the sought-after relative or, if applicable, of the children or siblings of the sought-after relative, and the 18.3 statement.

(h) Adoption agency disclosure of medical information. If the petitioner is an adult adopted or surrendered person or the adoptive parent of a minor and if the petitioner has signed a written authorization to disclose personal medical information, an adoption agency disclosing information to a confidential intermediary shall disclose available medical information about the adopted or surrendered person from birth through adoption.

(i) Duties of confidential intermediary in conducting a search. In conducting a search under this Section, the confidential intermediary shall first confirm that there is no Denial of Information Exchange on file with the Illinois Adoption Registry. If the petitioner is an adult child of an adopted or surrendered person who is deceased, the confidential intermediary shall additionally confirm that the adopted or surrendered person did not file a Denial of Information Exchange with the Illinois Adoption Registry during his or her life. If the petitioner is an adult birth sibling of an adopted or surrendered person or an adult sibling of a birth parent who is deceased, the confidential intermediary shall additionally confirm that the birth parent did not file a Denial of Information Exchange with the Registry during his or her life. If the confidential intermediary learns that a sought-after birth parent signed a statement indicating his or her intent not to have identifying information shared, and did not later file an Information Exchange Authorization with the Adoption Registry, the confidential intermediary shall discontinue the search and inform the petitioning party of the birth parent's intent.

In conducting a search under this Section, the confidential intermediary shall attempt to locate the relative or relatives from whom the petitioner has requested information. If the sought-after relative is deceased or cannot be located after a diligent search, the confidential intermediary may contact other adult relatives of the sought-after relative.

The confidential intermediary shall contact a sought-after relative on behalf of the petitioner in a manner that respects the sought-after relative's privacy and shall inform the sought-after relative of the petitioner's request for medical information, identifying information or contact as stated in the petition. Based upon the terms of the petitioner's request, the confidential intermediary shall contact a sought-after relative on behalf of the petitioner and inform the sought-after relative of the following options:

(1) The sought-after relative may totally reject one or all of the requests for medical information, identifying information or contact. The sought-after relative shall be informed that they can provide a medical questionnaire to be forwarded to the petitioner without releasing any identifying information. The confidential intermediary shall inform the petitioner of the sought-after relative's decision to reject the sharing of information or contact.

(2) The sought-after relative may consent to completing a medical questionnaire only. In this case, the confidential intermediary shall provide the questionnaire and ask the sought-after relative to complete it. The confidential intermediary shall forward the completed questionnaire to the petitioner and inform the petitioner of the sought-after relative's desire to not provide any additional information.

(3) The sought-after relative may communicate with the petitioner without having his or her identity disclosed. In this case, the confidential intermediary shall arrange the desired communication in a manner that protects the identity of the sought-after relative. The confidential intermediary shall inform the petitioner of the sought-after relative's decision to communicate but not disclose his or her identity.

(4) The sought after relative may consent to initiate contact with the petitioner. If both the petitioner and the sought-after relative or relatives are eligible to register with the Illinois Adoption Registry, the confidential intermediary shall provide the necessary application forms and request that the sought-after relative register with the Illinois Adoption Registry. If either the petitioner or the sought-after relative or relatives are ineligible to register with the Illinois Adoption Registry, the confidential intermediary shall obtain written consents from both parties that they wish to disclose their identities to each other and to have contact with each other.

(j) Oath. The confidential intermediary shall sign an oath of confidentiality substantially as follows: "I, .........., being duly sworn, on oath depose and say: As a condition of appointment as a confidential intermediary, I affirm that:

(1) I will not disclose to the petitioner, directly or indirectly, any confidential information except in a manner consistent with the law.

(2) I recognize that violation of this oath subjects me to civil liability and to a potential finding of contempt of court. ................................

SUBSCRIBED AND SWORN to before me, a Notary Public, on (insert date)

................................."

(k) Sanctions.

(1) Any confidential intermediary who improperly discloses confidential information identifying a sought-after relative shall be liable to the sought-after relative for damages and may also be found in contempt of court.

(2) Any person who learns a sought-after relative's identity, directly or indirectly, through the use of procedures provided in this Section and who improperly discloses information identifying the sought-after relative shall be liable to the sought-after relative for actual damages plus minimum punitive damages of $10,000.

(3) The Department shall fine any confidential intermediary who improperly discloses confidential information in violation of item (1) or (2) of this subsection (k) an amount up to $2,000 per improper disclosure. This fine does not affect civil liability under item (2) of this subsection (k). The Department shall deposit all fines and penalties collected under this Section into the Illinois Adoption Registry and Medical Information Fund.

(l) Death of person being sought. Notwithstanding any other provision of this Act, if the confidential intermediary discovers that the person being sought has died, he or she shall report this fact to the court, along with a copy of the death certificate.

(m) Any confidential information obtained by the confidential intermediary during the course of his or her search shall be kept strictly confidential and shall be used for the purpose of arranging contact between the petitioner and the sought-after birth relative. At the time the case is closed, all identifying information shall be returned to the court for inclusion in the impounded adoption file.

(n) If the petitioner is an adopted or surrendered person 21 years of age or over or the adoptive parent or legal guardian of an adopted or surrendered person under the age of 21, any non-identifying information, as defined in Section 18.4, that is ascertained during the course of the search may be given in writing to the petitioner at any time during the search before the case is closed.

(o) Except as provided in subsection (k) of this Section, no liability shall accrue to the State, any State agency, any judge, any officer or employee of the court, any certified confidential intermediary, or any agency designated to oversee confidential intermediary services for acts, omissions, or efforts made in good faith within the scope of this Section.

(p) An adoption agency that has received a request from a confidential intermediary for the full name, date of birth, last known address, or last known telephone number of a sought-after relative pursuant to subsection (g) of Section 18.3, or for medical information regarding a sought-after relative pursuant to subsection (h) of Section 18.3, must satisfactorily comply with this court order within a period of 45 days. The court shall order the adoption agency to reimburse the petitioner in an amount equal to all payments made by the petitioner to the confidential intermediary, and the adoption agency shall be subject to a civil monetary penalty of $1,000 to be paid to the Department of Children and Family Services. Following the issuance of a court order finding that the adoption agency has not complied with Section 18.3, the adoption agency shall be subject to a monetary penalty of $500 per day for each subsequent day of non-compliance.Proceeds from such fines shall be utilized by the Department of Children and Family Services to subsidize the fees of petitioners as referenced in subsection (d) of this Section.

(q) Provide information to eligible petitioner. The confidential intermediary may provide to eligible petitioners as described in subsections (a) and (b) of this Section, the name of the child welfare agency which had legal custody of the surrendered person or responsibility for placing the surrendered person and any available contact information for such agency. In addition, the confidential intermediary may provide to such petitioners the name of the state in which the surrender occurred or in which the adoption was finalized.

Any reimbursements and fines, notwithstanding any reimbursement directly to the petitioner, paid under this subsection are in addition to other remedies a court may otherwise impose by law.

Proceeds from the penalties paid to the Department of Children and Family Services shall be deposited into the DCFS Children's Services Fund. The Department of Children and Family Services shall submit reports to the Confidential Intermediary Advisory Council by July 1 and January 1 of each year in order to report the penalties assessed and collected under this subsection, the amounts of related deposits into the DCFS Children's Services Fund, and any expenditures from such deposits.

(Source: P.A. 93-189, eff. 1-1-04; 94-173, eff. 1-1-06; 94-1010, eff. 10-1-06.)