HB4623 95TH GENERAL ASSEMBLY


 


 
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).


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A BILL FOR

 

HB4623 LRB095 15988 AJO 42000 b

1     AN ACT concerning civil law.
 
2     Be it enacted by the People of the State of Illinois,
3 represented in the General Assembly:
 
4     Section 5. The Adoption Act is amended by changing Section
5 18.3a as follows:
 
6     (750 ILCS 50/18.3a)  (from Ch. 40, par. 1522.3a)
7     Sec. 18.3a. Confidential intermediary.
8     (a) General purposes. Notwithstanding any other provision
9 of this Act, any adopted or surrendered person 21 years of age
10 or over, any adoptive parent or legal guardian of an adopted or
11 surrendered person under the age of 21, or any birth parent of
12 an adopted or surrendered person who is 21 years of age or over
13 may petition the court in any county in the State of Illinois
14 for appointment of a confidential intermediary as provided in
15 this Section for the purpose of exchanging medical information
16 with one or more mutually consenting biological relatives,
17 obtaining identifying information about one or more mutually
18 consenting biological relatives, or arranging contact with one
19 or more mutually consenting biological relatives.
20 Additionally, in cases where an adopted or surrendered person
21 is deceased, an adult child of the adopted or surrendered
22 person or his or her adoptive parents or surviving spouse may
23 file a petition under this Section and in cases where the birth

 

 

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1 parent is deceased, an adult birth sibling of the adopted or
2 surrendered person or of the deceased birth parent may file a
3 petition under this Section for the purpose of exchanging
4 medical information with one or more mutually consenting
5 biological relatives of the adopted or surrendered person,
6 obtaining identifying information about one or more mutually
7 consenting biological relatives of the adopted or surrendered
8 person, or arranging contact with one or more mutually
9 consenting biological relatives of the adopted or surrendered
10 person. Beginning January 1, 2006, any adopted or surrendered
11 person 21 years of age or over; any adoptive parent or legal
12 guardian of an adopted or surrendered person under the age of
13 21; any birth parent, birth sibling, birth aunt, or birth uncle
14 of an adopted or surrendered person over the age of 21; any
15 surviving child, adoptive parent, or surviving spouse of a
16 deceased adopted or surrendered person who wishes to petition
17 the court for the appointment of a confidential intermediary
18 shall be required to accompany their petition with proof of
19 registration with the Illinois Adoption Registry and Medical
20 Information Exchange.
21     (b) Petition. Upon petition by an adopted or surrendered
22 person 21 years of age or over, an adoptive parent or legal
23 guardian of an adopted or surrendered person under the age of
24 21, or a birth parent of an adopted or surrendered person who
25 is 21 years of age or over, the court shall appoint a
26 confidential intermediary. Upon petition by an adult child,

 

 

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1 adoptive parent or surviving spouse of an adopted or
2 surrendered person who is deceased, by an adult birth sibling
3 of an adopted or surrendered person whose common birth parent
4 is deceased and whose adopted or surrendered birth sibling is
5 21 years of age or over, or by an adult sibling of a birth
6 parent who is deceased, and whose surrendered child is 21 years
7 of age or over, the court may appoint a confidential
8 intermediary if the court finds that the disclosure is of
9 greater benefit than nondisclosure. The petition shall state
10 which biological relative or relatives are being sought and
11 shall indicate if the petitioner wants to do any one or more of
12 the following: exchange medical information with the
13 biological relative or relatives, obtain identifying
14 information from the biological relative or relatives, or to
15 arrange contact with the biological relative.
16     (c) Order. The order appointing the confidential
17 intermediary shall allow that intermediary to conduct a search
18 for the sought-after relative by accessing those records
19 described in subsection (g) of this Section.
20     (d) Fees and expenses. The court shall condition the
21 appointment of the confidential intermediary on the
22 petitioner's payment of the intermediary's fees and expenses in
23 advance of the commencement of the work of the confidential
24 intermediary.
25     (e) Eligibility of intermediary. The court may appoint as
26 confidential intermediary any person certified by the

 

 

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1 Department of Children and Family Services as qualified to
2 serve as a confidential intermediary. Certification shall be
3 dependent upon the confidential intermediary completing a
4 course of training including, but not limited to, applicable
5 federal and State privacy laws.
6     (f) Confidential Intermediary Council. There shall be
7 established under the Department of Children and Family
8 Services a Confidential Intermediary Advisory Council. One
9 member shall be an attorney representing the Attorney General's
10 Office appointed by the Attorney General. One member shall be a
11 currently certified confidential intermediary appointed by the
12 Director of the Department of Children and Family Services. The
13 Director shall also appoint 5 additional members. When making
14 those appointments, the Director shall consider advocates for
15 adopted persons, adoptive parents, birth parents, lawyers who
16 represent clients in private adoptions, lawyers specializing
17 in privacy law, and representatives of agencies involved in
18 adoptions. The Director shall appoint one of the 7 members as
19 the chairperson. An attorney from the Department of Children
20 and Family Services and the person directly responsible for
21 administering the confidential intermediary program shall
22 serve as ex-officio, non-voting advisors to the Council.
23 Council members shall serve at the discretion of the Director
24 and shall receive no compensation other than reasonable
25 expenses approved by the Director. The Council shall meet no
26 less than twice yearly, and shall make recommendations to the

 

 

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1 Director regarding the development of rules, procedures, and
2 forms that will ensure efficient and effective operation of the
3 confidential intermediary process, including:
4         (1) Standards for certification for confidential
5     intermediaries.
6         (2) Oversight of methods used to verify that
7     intermediaries are complying with the appropriate laws.
8         (3) Training for confidential intermediaries,
9     including training with respect to federal and State
10     privacy laws.
11         (4) The relationship between confidential
12     intermediaries and the court system, including the
13     development of sample orders defining the scope of the
14     intermediaries' access to information.
15         (5) Any recent violations of policy or procedures by
16     confidential intermediaries and remedial steps, including
17     decertification, to prevent future violations.
18     (g)  Access. Subject to the limitations of subsection (i)
19 of this Section, the confidential intermediary shall have
20 access to vital records maintained by the Department of Public
21 Health and its local designees for the maintenance of vital
22 records or a comparable public entity that maintains vital
23 records in another state in accordance with that state's laws
24 and all records of the court or any adoption agency, public or
25 private, as limited in this Section, which relate to the
26 adoption or the identity and location of an adopted or

 

 

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1 surrendered person, of an adult child or surviving spouse of a
2 deceased adopted or surrendered person, or of a birth parent,
3 birth sibling, or the sibling of a deceased birth parent. The
4 confidential intermediary shall not have access to any personal
5 health information protected by the Standards for Privacy of
6 Individually Identifiable Health Information adopted by the
7 U.S. Department of Health and Human Services under the Health
8 Insurance Portability and Accountability Act of 1996 unless the
9 confidential intermediary has obtained written consent from
10 the person whose information is being sought or, if that person
11 is a minor child, that person's parent or guardian.
12 Confidential intermediaries shall be authorized to inspect
13 confidential relinquishment and adoption records. The
14 confidential intermediary shall not be authorized to access
15 medical records, financial records, credit records, banking
16 records, home studies, attorney file records, or other personal
17 records. In cases where a birth parent is being sought, an
18 adoption agency shall inform the confidential intermediary of
19 any statement filed pursuant to Section 18.3, hereinafter
20 referred to as "the 18.3 statement", indicating a desire of the
21 surrendering birth parent to have identifying information
22 shared or to not have identifying information shared. If there
23 was a clear statement of intent by the sought-after birth
24 parent not to have identifying information shared, the
25 confidential intermediary shall discontinue the search and
26 inform the petitioning party of the sought-after relative's

 

 

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1 intent. Information provided to the confidential intermediary
2 by an adoption agency shall be restricted to the full name,
3 date of birth, place of birth, last known address, last known
4 telephone number of the sought-after relative or, if
5 applicable, of the children or siblings of the sought-after
6 relative, and the 18.3 statement.
7     (h) Adoption agency disclosure of medical information. If
8 the petitioner is an adult adopted or surrendered person or the
9 adoptive parent of a minor and if the petitioner has signed a
10 written authorization to disclose personal medical
11 information, an adoption agency disclosing information to a
12 confidential intermediary shall disclose available medical
13 information about the adopted or surrendered person from birth
14 through adoption.
15     (i) Duties of confidential intermediary in conducting a
16 search. In conducting a search under this Section, the
17 confidential intermediary shall first confirm that there is no
18 Denial of Information Exchange on file with the Illinois
19 Adoption Registry. If the petitioner is an adult child of an
20 adopted or surrendered person who is deceased, the confidential
21 intermediary shall additionally confirm that the adopted or
22 surrendered person did not file a Denial of Information
23 Exchange with the Illinois Adoption Registry during his or her
24 life. If the petitioner is an adult birth sibling of an adopted
25 or surrendered person or an adult sibling of a birth parent who
26 is deceased, the confidential intermediary shall additionally

 

 

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1 confirm that the birth parent did not file a Denial of
2 Information Exchange with the Registry during his or her life.
3 If the confidential intermediary learns that a sought-after
4 birth parent signed a statement indicating his or her intent
5 not to have identifying information shared, and did not later
6 file an Information Exchange Authorization with the Adoption
7 Registry, the confidential intermediary shall discontinue the
8 search and inform the petitioning party of the birth parent's
9 intent.
10     In conducting a search under this Section, the confidential
11 intermediary shall attempt to locate the relative or relatives
12 from whom the petitioner has requested information. If the
13 sought-after relative is deceased or cannot be located after a
14 diligent search, the confidential intermediary may contact
15 other adult relatives of the sought-after relative.
16     The confidential intermediary shall contact a sought-after
17 relative on behalf of the petitioner in a manner that respects
18 the sought-after relative's privacy and shall inform the
19 sought-after relative of the petitioner's request for medical
20 information, identifying information or contact as stated in
21 the petition. Based upon the terms of the petitioner's request,
22 the confidential intermediary shall contact a sought-after
23 relative on behalf of the petitioner and inform the
24 sought-after relative of the following options:
25         (1) The sought-after relative may totally reject one or
26     all of the requests for medical information, identifying

 

 

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1     information or contact. The sought-after relative shall be
2     informed that they can provide a medical questionnaire to
3     be forwarded to the petitioner without releasing any
4     identifying information. The confidential intermediary
5     shall inform the petitioner of the sought-after relative's
6     decision to reject the sharing of information or contact.
7         (2) The sought-after relative may consent to
8     completing a medical questionnaire only. In this case, the
9     confidential intermediary shall provide the questionnaire
10     and ask the sought-after relative to complete it. The
11     confidential intermediary shall forward the completed
12     questionnaire to the petitioner and inform the petitioner
13     of the sought-after relative's desire to not provide any
14     additional information.
15         (3) The sought-after relative may communicate with the
16     petitioner without having his or her identity disclosed. In
17     this case, the confidential intermediary shall arrange the
18     desired communication in a manner that protects the
19     identity of the sought-after relative. The confidential
20     intermediary shall inform the petitioner of the
21     sought-after relative's decision to communicate but not
22     disclose his or her identity.
23         (4) The sought after relative may consent to initiate
24     contact with the petitioner. If both the petitioner and the
25     sought-after relative or relatives are eligible to
26     register with the Illinois Adoption Registry, the

 

 

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1     confidential intermediary shall provide the necessary
2     application forms and request that the sought-after
3     relative register with the Illinois Adoption Registry. If
4     either the petitioner or the sought-after relative or
5     relatives are ineligible to register with the Illinois
6     Adoption Registry, the confidential intermediary shall
7     obtain written consents from both parties that they wish to
8     disclose their identities to each other and to have contact
9     with each other.
10     (j) Oath. The confidential intermediary shall sign an oath
11 of confidentiality substantially as follows: "I, ..........,
12 being duly sworn, on oath depose and say: As a condition of
13 appointment as a confidential intermediary, I affirm that:
14         (1) I will not disclose to the petitioner, directly or
15     indirectly, any confidential information except in a
16     manner consistent with the law.
17         (2) I recognize that violation of this oath subjects me
18     to civil liability and to a potential finding of contempt
19     of court. ................................
20 SUBSCRIBED AND SWORN to before me, a Notary Public, on (insert
21 date)
22 ................................."
23     (k) Sanctions.
24         (1) Any confidential intermediary who improperly
25     discloses confidential information identifying a
26     sought-after relative shall be liable to the sought-after

 

 

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1     relative for damages and may also be found in contempt of
2     court.
3         (2) Any person who learns a sought-after relative's
4     identity, directly or indirectly, through the use of
5     procedures provided in this Section and who improperly
6     discloses information identifying the sought-after
7     relative shall be liable to the sought-after relative for
8     actual damages plus minimum punitive damages of $10,000.
9         (3) The Department shall fine any confidential
10     intermediary who improperly discloses confidential
11     information in violation of item (1) or (2) of this
12     subsection (k) an amount up to $2,000 per improper
13     disclosure. This fine does not affect civil liability under
14     item (2) of this subsection (k). The Department shall
15     deposit all fines and penalties collected under this
16     Section into the Illinois Adoption Registry and Medical
17     Information Fund.
18     (l) Death of person being sought. Notwithstanding any other
19 provision of this Act, if the confidential intermediary
20 discovers that the person being sought has died, he or she
21 shall report this fact to the court, along with a copy of the
22 death certificate.
23     (m) Any confidential information obtained by the
24 confidential intermediary during the course of his or her
25 search shall be kept strictly confidential and shall be used
26 for the purpose of arranging contact between the petitioner and

 

 

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1 the sought-after birth relative. At the time the case is
2 closed, all identifying information shall be returned to the
3 court for inclusion in the impounded adoption file.
4     (n) If the petitioner is an adopted or surrendered person
5 21 years of age or over or the adoptive parent or legal
6 guardian of an adopted or surrendered person under the age of
7 21, any non-identifying information, as defined in Section
8 18.4, that is ascertained during the course of the search may
9 be given in writing to the petitioner at any time during the
10 search before the case is closed.
11     (o) Except as provided in subsection (k) of this Section,
12 no liability shall accrue to the State, any State agency, any
13 judge, any officer or employee of the court, any certified
14 confidential intermediary, or any agency designated to oversee
15 confidential intermediary services for acts, omissions, or
16 efforts made in good faith within the scope of this Section.
17     (p) An adoption agency that has received a request from a
18 confidential intermediary for the full name, date of birth,
19 last known address, or last known telephone number of a
20 sought-after relative pursuant to subsection (g) of Section
21 18.3, or for medical information regarding a sought-after
22 relative pursuant to subsection (h) of Section 18.3, must
23 satisfactorily comply with this court order within a period of
24 45 days. The court shall order the adoption agency to reimburse
25 the petitioner in an amount equal to all payments made by the
26 petitioner to the confidential intermediary, and the adoption

 

 

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1 agency shall be subject to a civil monetary penalty of $1,000
2 to be paid to the Department of Children and Family Services.
3 Following the issuance of a court order finding that the
4 adoption agency has not complied with Section 18.3, the
5 adoption agency shall be subject to a monetary penalty of $500
6 per day for each subsequent day of non-compliance.Proceeds from
7 such fines shall be utilized by the Department of Children and
8 Family Services to subsidize the fees of petitioners as
9 referenced in subsection (d) of this Section.
10         (q) Provide information to eligible petitioner. The
11 confidential intermediary may provide to eligible petitioners
12 as described in subsections (a) and (b) of this Section, the
13 name of the child welfare agency which had legal custody of the
14 surrendered person or responsibility for placing the
15 surrendered person and any available contact information for
16 such agency. In addition, the confidential intermediary may
17 provide to such petitioners the name of the state in which the
18 surrender occurred or in which the adoption was finalized.
19     Any reimbursements and fines, notwithstanding any
20 reimbursement directly to the petitioner, paid under this
21 subsection are in addition to other remedies a court may
22 otherwise impose by law.
23     Proceeds from the penalties paid to the Department of
24 Children and Family Services shall be deposited into the DCFS
25 Children's Services Fund. The Department of Children and Family
26 Services shall submit reports to the Confidential Intermediary

 

 

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1 Advisory Council by July 1 and January 1 of each year in order
2 to report the penalties assessed and collected under this
3 subsection, the amounts of related deposits into the DCFS
4 Children's Services Fund, and any expenditures from such
5 deposits.
6 (Source: P.A. 93-189, eff. 1-1-04; 94-173, eff. 1-1-06;
7 94-1010, eff. 10-1-06.)