SB3706eng 104TH GENERAL ASSEMBLY

SB3706 Engrossed LRB104 20671 JRC 34170 b

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,

(1) any adopted or surrendered person 21 years of age or over; or

(2) any adoptive parent or legal guardian of an adopted or surrendered person under the age of 21; or

(3) any birth parent of an adopted or surrendered person who is 21 years of age or over; or

(4) any adult child or adult grandchild of a deceased adopted or surrendered person; or

(5) any adoptive parent or surviving spouse of a deceased adopted or surrendered person; or

(6) any adult birth sibling of the adult adopted or surrendered person unless the birth parent has checked Option E on the Birth Parent Preference Form or has filed a Denial of Information Exchange with the Registry and is not deceased; or

(7) any adult adopted birth sibling of an adult adopted or surrendered person; or

(8) any adult birth sibling of the birth parent if the birth parent is deceased; or

(9) any birth grandparent 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. The petitioner shall be required to accompany his or her petition with proof of registration with the Illinois Adoption Registry and Medical Information Exchange.

(a-4) The adoptive parent or legal guardian of an adopted or surrendered person under the age of 21 may also petition the court for the appointment of a confidential intermediary for purposes of obtaining identifying information or arranging contact with a mutually consenting adoptive parent or legal guardian of a birth sibling of the petitioner's adopted or surrendered child under the age of 21.

(a-5) In addition, any former youth in care as defined in Section 4d of the Children and Family Services Act who was adopted or surrendered may petition the court in any county in the State for appointment of a confidential intermediary as provided in this Section for the purposes of obtaining identifying information or arranging contact with (i) siblings or birth relatives if the former youth in care is between the ages of 18 and 21 or (ii) former foster parents or foster siblings if the former youth in care is over the age of 18. A petitioner under this subsection is not required to register with the Illinois Adoption Registry and Medical Information Exchange.

(b) Petition. Upon petition, the court shall appoint a confidential intermediary. The petition shall indicate if the petitioner wants to do any one or more of the following as to the sought-after relative or relatives: 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 not condition the appointment of the confidential intermediary on the payment of the intermediary's fees and expenses in advance of the commencement of the work of the confidential intermediary. No fee shall be charged to any petitioner.

(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) (Blank).

(g) Confidential intermediary access to information. 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 by an adult adopted or surrendered person 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. 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. 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.

(h) Disclosure of information Missing or lost original birth certificate; remedy. Disclosure of information by the confidential intermediary shall be consistent with the public policy and intent of laws granting original birth certificate access as expressed in Section 18.04 of this Act. The confidential intermediary shall comply with the following procedures in disclosing information to the petitioners:

(1) If the petitioner is an adult adopted or surrendered person, or the adult child, adult grandchild, or surviving spouse of a deceased adopted or surrendered person, the confidential intermediary shall disclose:

(A) Missing or lost original birth certificate; remedy. Identifying identifying information about the birth parent of the adopted person and about the adult adopted or surrendered person, which, in the ordinary course of business, would have been reflected on the original filed certificate of birth, as of the date of birth, only if:

(i) the adopted person was born before January 1, 1946 and the petitioner has requested a non-certified copy of the adopted person's original birth certificate under Section 18.1 of this Act, and the Illinois Department of Public Health has issued a certification that the original birth certificate was not found, or the petitioner has presented the confidential intermediary with the non-certified copy of the original birth certificate which omits the name of the birth parent;

(ii) the adopted person was born after January 1, 1946, and the petitioner has requested a non-certified copy of the adopted person's original birth certificate under Section 18.1 of this Act and the Illinois Department of Public Health has issued a certification that the original birth certificate was not found.

In providing information pursuant to this subdivision (h)(1)(A), the confidential intermediary shall expressly inform the petitioner in writing that since the identifying information is not from an official original certificate of birth filed pursuant to the Vital Records Act, the confidential intermediary cannot attest to the complete accuracy of the information and the confidential intermediary shall not be liable if the information disclosed is not accurate. Only information from the court files shall be provided to the petitioner in this Section. If the identifying information concerning a birth father is sought by the petitioner, the confidential intermediary shall disclose only the identifying information of the birth father as defined in Section 18.06 of this Act;

(B) the name of the child welfare agency which had legal custody of the surrendered person or responsibility for placing, or assisting in the placement of, the surrendered person and any available contact information for such agency;

(C) the name of the state in which the surrender occurred and or in which the adoption was finalized; and

(D) any information for which the sought-after relative has provided his or her consent to disclose under paragraphs (1) through (4) of subsection (i) of this Section.

(2) If the petitioner is an adult adopted or surrendered person, or the adoptive parent of an adult adopted or surrendered person under the age of 21, or the adoptive parent of a deceased adopted or surrendered person, or the adult child or grandchild of a deceased adopted or surrendered person, the confidential intermediary shall provide, in addition to the information listed in paragraph (1) of this subsection (h):

(A) subject to subsection (g), any information which the adoption agency provides pursuant to subsection (i) of this Section pertaining to medical information about the adopted or surrendered person; and

(B) any non-identifying information, as defined in Section 18.4 of this Act, that is obtained during the search.

(3) If the petitioner is not defined in paragraph (1) or (2) of this subsection, the confidential intermediary shall provide to the petitioner:

(A) any information for which the sought-after relative has provided his or her consent under paragraphs (1) through (4) of subsection (i) of this Section;

(B) the name of the child welfare agency which had legal custody of the surrendered person or responsibility for placing, or assisting in the placement of, the surrendered person and any available contact information for such agency; and

(C) the name of the state in which the surrender occurred or in which the adoption was finalized.

(h-5) Disclosure of information shall be made by the confidential intermediary at any time from the appointment of the confidential intermediary and the court's issuance of an order of dismissal.

(i) Duties of confidential intermediary in conducting a search. In conducting a search under this Section, the confidential intermediary shall first determine whether there is a Denial of Information Exchange or a Birth Parent Preference Form with Option E selected or an 18.3 statement referenced in subsection (g) of this Section on file with the Illinois Adoption Registry. If there is a denial, the Birth Parent Preference Form on file with the Registry and the birth parent who completed the form selected Option E, or if there is an 18.3 statement indicating the birth parent's intent not to have identifying information shared and the birth parent did not later file an Information Exchange Authorization with the Registry, the confidential intermediary must discontinue the search unless 5 years or more have elapsed since the execution of the Denial of Information Exchange, Birth Parent Preference Form, or the 18.3 statement. If a birth parent was previously the subject of a search through the State confidential intermediary program, the confidential intermediary shall inform the petitioner of the need to discontinue the search until 10 years or more have elapsed since the initial search was closed. In cases where a birth parent has been the object of 2 searches through the State confidential intermediary program, no subsequent search for the birth parent shall be authorized absent a court order to the contrary.

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. 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. If the sought-after relative is a birth parent, the confidential intermediary shall also forward a copy of the birth parent's death certificate, if available, to the Registry for inclusion in the Registry file.

(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) (Blank).

(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 18.3a, or for medical information regarding a sought-after relative pursuant to subsection (h) of Section 18.3a, 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) (Blank).

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.

The Department of Children and Family Services shall submit reports to the Adoption Registry-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.

(r) A confidential intermediary shall be permitted to access information from closed child welfare agencies whose records are housed in the State Central Storage consistent with paragraph (g) for all petitioners. If the petitioner is an adult adopted or surrendered person, the adoptive parent of an adult adopted person under the age of 21, or the adoptive parent of a deceased adopted or surrendered person, or an adult child or grandchild of a deceased adopted or surrendered person, the confidential intermediary may request any non-identifying information, including any available medical information about the adopted or surrendered person from birth through adoption, any non-identifying information described in Section 18.4, and the Section 18.3 statement, and, subject to subsection (g), the confidential intermediary shall disclose the non-identifying information to a petitioner who is an adult adopted or surrendered person, the adoptive parent of an adult adopted person under the age of 21, the adoptive parent of a deceased adopted or surrendered person, or an adult child or grandchild of a deceased adopted or surrendered person.

(Source: P.A. 104-69, eff. 1-1-26.)