Part I.
Texas Department of Health
Chapter 181.
Vital Records
The Texas Department of Health (department) adopts new §§181.31,
181.32 and 181.41-181.49, regarding the reporting of adoptions, records received
from child-placing agencies no longer in business, and the operation of the
Bureau of Vital Statistics (BVS), Central Adoption Registry (CAR). Sections
181.31, 181.32, 181.41, 181.43-181.45 are adopted with changes to the proposed
text as published in the September 25, 1998, issue of the
Texas Register
(23 TexReg 9698). Sections 181.42 and 181.46-181.49
are adopted without changes and therefore will not be republished.
New §181.31 restates the statutory requirement for courts to send
adoption reporting information to BVS. The collection of this information
was designed in part to aid the CAR in matching and cross-referencing biological
family data with adoptive family data.
New §181.32 clarifies and identifies the process by which a child-placing
agency notifies the department when it relinquishes its child-placing agency
license and must transfer, by law, all adoption records to an entity described
in the section for permanent safe-keeping. If the child-placing agency chooses
to turn its adoption records over to BVS, the section establishes procedures
on shipping the records to BVS and what information is needed prior to the
shipping. It also addresses who may have access to the non-identifying part
of the record as described by law and specifies that updated medical and social
information may be added to the agency's adoption record by the biological
family for the purpose of alerting the adoptive family to important genetic,
medical and social history.
Last, new §§181.41-181.49 reflect the procedures for the CAR,
transferred from the Texas Department of Protective and Regulatory Services
to the department as directed by House Bill (HB) 1091 of the 75th Legislature.
The CAR is a mutual-consent voluntary adoption registry which offers adoptees,
birth parents, and biological siblings the ability to locate each other without
having to go through the court system or spending excessive amounts of time
and effort through other sources.
The department is making the following changes to clarify the intent and
improve the accuracy of the sections.
Change: Concerning §181.31(a), the standardized BVS Form VS-160 was
specified to clarify which form the court is to send to the department.
Change: Concerning §181.32(c), additional information was included
to prepare defunct child-placing agency records for shipping to BVS and to
off-set some of the cost to the department when the records are microfilmed
for permanent safe-keeping. Included in the language is the removal of staples,
paper clips and brackets from the adoption folders; keeping the birth parent
file together with the adoptive parent and the child's file; and creating
card files that cross-reference the birth mother's name with the adoptive
parents' and adoptee's names.
Change: Concerning §181.32(e), the phrase "or other birth relative"
was added due to the permanency of adoption records and to the fact that often
the birth parents and grandparents are deceased.
Change: Concerning §181.32(e)(2), the phrase "or the adult adoptee"
was deleted from the proposed language due to the law that allows the department
to inform only the adoptive parents of any updated medical and social information.
Unfortunately, when the adoptive parents are deceased or cannot be located,
important medical information that may be vital to the health of the adoptee
will not be disclosed.
Change: Concerning §181.41(c), a sentence was added to strengthen
the rule requiring a child-placing agency's registry to forward a registrant's
application to the CAR.
Change: Concerning §181.43(b)-(c), the dates to submit information
to the CAR were changed from March to June to allow time for the final rules
to be published in the
Texas Register
.
Change: Concerning §181.45(b), language was added to clarify that
the section was referring to a male "birth parent" and not just a male applicant.
The following comments were received concerning the proposed sections.
Following each comment is the department's response and any resulting changes.
Comment: Concerning §181.31, one commenter thought that providing
the birth parent and adoptive parent information on the certified report of
adoption form may result in giving court information to birth parents to use
in petitioning the court to open the sealed adoption record.
Response: The department disagrees with the comment. The court information
is made confidential by the Family Code, §108.003(b). The birth parents
may get the information by order of a court. The cross-reference information
that is now provided by the courts to BVS specifically allows the CAR to economically
cross-reference and match applicants. No change was made in response to this
comment.
Comment: Concerning §181.31(a)(7), one commenter asked about the identity
of the child-placing agency recorded in the report of adoption form. The commenter
recommended that the facilitator's name be added to the form when the adoption
occurs independently of a child placing agency.
Response: The department disagrees with the commenter. The facilitator's
name does not provide any additional information to operate the adoption registry
and is not needed on Form VS-160.
Comment: Concerning §181.32(e)(1), one commenter had concerns about
the redacted or de-identified portion of the updated medical history record
that shall be shared with the adoptive parents or the adult adoptee. The commenter
requested that the word "redacted" be removed and the term "de-identified"
remain in place. The commenter felt that the word "redacted" would provide
too much leeway for withholding information and that the redaction process
may not be cost effective for the person requesting the record.
Response: The department disagrees with the commenter. The dictionary defines
redaction as "an act or instance of editing; to select or adapt for publication:
edit; a work that has been edited." The term "de-identify" is not defined
in the dictionary but is used to mean to remove identifying information from
the record. The Family Code, §162.006 requires the department to "edit"
the records to protect the "identity" of certain persons. The department is
not in agreement that the term "redact" be deleted from that section, but
has included both terms in paragraph (1).
Comment: Concerning §181.32(e)(2), one commenter noted that locating
the last known address of the adoptive parents in the attempt to inform them
of their right to examine the agency record may indicate only the address
at the time of the adoption. It was recommended that the language be changed
to "the bureau shall make concerted efforts to locate (the current address,
phone number, whereabouts of) adoptive parents..."
Response: The department agrees with the commenter and has included similar
language in the paragraph.
Comment: Concerning §181.43, one commenter asked about requiring authorized
adoption registries to send to the CAR duplicate information of all registrant
information maintained in those registries, including all registrant files.
Clarification was requested as to whether sending applicant information is
sufficient, whether other information, such as a child- placing agency's adoption
case file on a particular registrant would be required, or whether sending
the standardized BVS Form 2271, Voluntary Adoption Registry Application, would
meet the requirement. Clarification was also requested on whether later documentation
received by the registry from the registrant should be forwarded to the department.
Response: The department agrees that clarification should be made as to
what "all registrant information" includes and has amended subsection (a)
to reflect that BVS Form 2271 be completed with all known names, including
proof of age and identity of each registrant, and the names, date of birth,
and place of birth of each person for whom the registrant is searching, if
known. Any updated information including changes of address of the registrant
shall be forwarded to the CAR. Adoption case files are considered part of
the child-placing agency's files and are not considered part of the registry
files unless the information contained in the files provides information to
benefit or aid the match process.
Comment: Concerning §181.43, one commenter asked about the possibility
of the CAR and another registry simultaneously matching registrants and recommended
designating which registry would take the lead in the match notification process.
Additionally, it was recommended that if a child-placing agency was involved
in the adoption, its registry would be designated to take the lead. An exception
was noted by the commenter that if there was no identified registry or the
registrants specifically did not register with another registry and chose
instead to only register with the CAR, the department would be responsible
for making the match and releasing the identifying information.
Response: The department agrees that a duplicate notification process could
exist if a qualified applicant registers in more than one voluntary adoption
registry and has added subsection (d) to address this situation.
Due to the underutilization of the voluntary adoption registry system by
qualified child- placing agencies' registries, the CAR encourages other registries
to provide their clients with BVS Form 2271 so they may register solely with
the CAR, alleviating unnecessary or burdensome paperwork for the child-placing
agencies who primarily provide post-adoption services, including third party
intermediary services.
Comment: Concerning §181.43, one commenter asked for notification
by the CAR to the child-placing agency's registry when an applicant adopted
by or searching for a child placed for adoption by the child-placing agency
applies only to the CAR.
Response: The department disagrees. It must follow Family Code, §162.405(b)-(d)
and can provide the applicant with the registry identity. The department may
"confirm or deny" a match upon inquiry of a registry under the Family Code,
§162.414(c)-(d). No change was made as a result of this comment.
Comment: Concerning §181.44(c), one commenter requested that the CAR
provide inquirers or registrants with the mailing or E-mail address, or telephone
number of the identified child-placing agency.
Response: The department agrees and the section has been amended to include
the address, telephone information and E-mail address, if known, of the child-placing
agency.
Comment: Concerning §181.45(a)(1), one commenter said that BVS Form
2271 does not provide an area for the child placing agency's registry to tailor
the form to meet its needs.
Response: The department has included all information in the form that
is mandated by law and additional information to aid in research; however,
it agrees that space is not provided on the form for a mailing address to
the agency's registry and has amended paragraph (1) to address this. The form
shall be amended by BVS, within reason, allowing for information that a registry
needs to complete its registration process. In addition, the section is amended
to state that the registry may add information, on a separate form, for their
applicant to complete.
Comment: Concerning §181.46(b)(3), one commenter agreed with the language
in the rules that states the one hour of mandated counseling may be provided
by an unlicensed mental health professional provided he or she has, at a minimum,
a bachelor's degree from an accredited college and expertise in post-adoption
counseling.
Response: The department originally added the language to the proposed
rules to allow various persons who are knowledgeable in the field of post-adoption
to counsel matchees on the expectations of a reunion. No further changes were
made in response to this comment.
Comment: One commenter expressed concern that if a child-placing agency
followed the voluntary adoption registry rules, then the child-placing agency
would not be able to provide third- party intermediary services to search
for the missing party when a match does not occur.
Response: Texas Family Code §162.401, states that the registry is
not intended to "inhibit or prohibit persons from locating each other through
other legal means or to inhibit or affect in any way the provision of postadoptive
services and education, by adoption agencies or others, that go further than
the procedures set out for registries..." The department agrees with the commenter
that the voluntary adoption registry is one of the tools that helps reunite
persons separated by adoption. No change was made in response to the comment.
Comments were received by the Texas Department of Protective and Regulatory
Services, and two individuals. One commenter was in favor of the rules. The
two remaining commenters were neither for nor against the rules in their entirety;
however, they raised questions, offered comments for clarification purposes
and suggested clarifying language concerning specific provisions in the rules.
Subchapter B. Vital Records