|
||||||||||||||||||||
|
||||||||||||||||||||
| ||||||||||||||||||||
| ||||||||||||||||||||
| ||||||||||||||||||||
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 |
| |||||||
| |||||||
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, |
| |||||||
| |||||||
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 |
| |||||||
| |||||||
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 |
| |||||||
| |||||||
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 |
| |||||||
| |||||||
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
|
| |||||||
| |||||||
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 |
| |||||||
| |||||||
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 |
| |||||||
| |||||||
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 |
| |||||||
| |||||||
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 |
| |||||||
| |||||||
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 |
| |||||||
| |||||||
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 |
| |||||||
| |||||||
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 |
| |||||||
| |||||||
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.)
|