A Letter of Legal Clearance? What is it? Do I Need One?

In most egg donations and in many embryo donations (anonymous or known), the donors and the recipients meet with reproductive law attorneys (each retains separate counsel, the recipients pay both attorneys’ fees) to discuss obligations, expectations, entitlements and restrictions that either party may intend to impose on the other. Typically, the recipients’ attorney will then draft what is generally known as an Egg Donation Agreement or an Embryo Donation Agreement (depending on the type of donation).

A Letter of Legal Clearance

 

A skilled reproductive law attorney will produce a document, generally 20-30 pages in length that captures, amongst other things, the respective intentions of the donor and the recipients. (I have done much writing and speaking on how imperative it is, in order to protect the donor’s rights as well as to best preserve parentage on the part of the non-genetic recipient, that direct contracts between donors and recipients be mandated by clinics and/or be insisted upon by patients…. more info on why contracts are necessary can be found in other blogs under my Legal Issues tab.)

For those clinics that wisely require direct agreements, most will want to be notified that the contract has been signed before the clinic will allow the cycle to start. There is some debate as to whether or not the clinic (or anyone else) is entitled to receive a copy of the agreement. At my office, because we feel these documents contain private and confidential information, we generally withhold the contract and, instead, issue to the clinic (and the matching agency, if one was used) a Letter of Legal Clearance. Even those attorneys who do feel comfortable sharing a copy of the contract will also send a Letter of Legal Clearance summarizing for the clinic certain terms of the agreement. Clinics will file the Letter of Legal Clearance with the recipients’ cycle records so that, should any action related to the cycle come up in the future (recipients want/need to contact the donor, the child wants to meet the donor, the recipients have excess or residual embryos they now want to donate or dispose of), the clinic is clear as to what was agreed to and they can proceed accordingly. (I’d like to say that I often consider whispering in the ear of certain clinics that direct contracts and Letters of Legal Clearance minimize their exposure to liability….frankly, I’d rather scream it, but, separate blog, separate matter.)

Typically my Letter of Legal Clearance informs the clinic of the following:

1. If the recipients have agreed (or not) that cycle results (number of eggs, embryos and pregnancy outcome) can be shared with the donor;
2. If the donor has agreed (or not) to be reached, through an intermediary, if the child suffers a medical crisis;
3. If the donor has agreed (or not) to be reached, through an intermediary, if the parents or the child should want to contact or meet the donor;
4. If the recipients can dispose of excess cryo preserved embryos by directing the clinic to thaw or otherwise destroy the embryos;
5. If the recipients can dispose of excess cryo preserved embryos through donation for scientific research; and
6. If the recipients can dispose of the excess embryos by donating them to another recipient for family building.

There are many other matters that can be addressed in a Letter of Legal Clearance (as there are many other matters addressed in the Egg or Embryo Donation Agreement including and most importantly, the donor’s relinquishment of parental rights) but the above generally shows how the attorney can inform the clinic of the intentions/expectations of both parties so that the clinic can accommodate any future request consistent with what the parties agreed to at the time of the donation. A Letter of Legal Clearance is a good idea for all who are involved in assisted family building and one that should be strongly considered by those clinics that do not presently require direct agreements. Recipients and donors should also consider the Letter of Legal Clearance as a must-have in order to be best protected throughout the donation process and for many years to follow.

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The Security Clearance Process For Defense Contractor Employees

This article is designed to give individuals an overview of the security clearance process, from beginning to end, which will leave the reader with a clear understanding of what to expect should he or she decide to seek a security clearance. This article only deals with defense contractor employees and collateral security clearances, (i.e., security clearances at the Confidential, Secret and Top Secret levels.)

Who is eligible to apply for a clearance?

An individual cannot apply for a clearance on his or her own. He or she must be “sponsored” for the clearance by their defense contractor employer. They can only be “sponsored” if the work they will perform requires access to classified information.

Only U.S. citizens, native born and naturalized, can be granted a clearance. In very rare circumstances, a non-U.S. citizen may be issued a Limited Access Authorization for access to classified information. For the average individual not possessing some unique skills, this exception is not available.

The Process

If your employer decides you need access to classified information to perform your job, they submit a request for an investigation through JPAS, an automated system that keeps track of all individuals possessing or seeking a security clearance. Your employer will also ask you to complete a security questionnaire (SF-86). This form is now electronic so in most cases you will have to complete an online version known as an e-QIP. Once you complete the e-QIP and it is sent to the Defense Industrial Security Clearance Office (DISCO), the information you provided on the e-QIP is part of your permanent record. In plain language, you are stuck with your answers to the questions on the e-QIP. It is for this reason you should read each question very carefully and provide truthful answers.

The e-QIP and request for investigation ends up at the Office of Personnel Management (OPM), a government agency which conducts most of the background investigations for DoD contractor employees seeking a security clearance. Depending on the level of security clearance you are seeking, and other variables, the investigation may include an OPM investigator interviewing you.

When the investigation is complete, OPM sends your investigative file to DISCO. In the vast majority of cases, DISCO grants the clearance request, and notifies your employer of its decision. If DISCO is unable to make the affirmative finding that it is clearly consistent with the national interest to grant you a clearance, they refer your case to the Defense Office of Hearings and Appeals (DOHA). Once at DOHA, your file is further reviewed. DOHA may send you interrogatories (i.e., written questions) seeking further information. In some cases, DOHA will grant your security clearance request with no further action. However, if DOHA decides it too cannot make the affirmative finding that granting your security clearance request is clearly consistent with the national interest, they will issue you a Statement of Reasons (SOR) detailing their concerns.

In order to continue the processing of your security clearance request, and have your case assigned to a DOHA Administrative Judge to make the final decision, you must file a notarized answer to the SOR within the time limit set by DOHA. The answer must admit or deny each allegation in the SOR. Also, as part of your answer, you are required to inform DOHA whether you want your case decided on a written record, or after a Hearing before the DOHA Administrative Judge. If you decide to go with the first option, the Administrative Judge will decide your case based on written submissions by you and the DoD attorney, known as a Department Counsel (DC). With this option, you never get to meet the DOHA judge face-to-face to plead your case. If you request a Hearing, the Administrative Judge will send you a Notice of Hearing, informing you of the date, time and place of the Hearing, at least 15 days before the Hearing date. At the Hearing, the DC will present the Government’s evidence supporting the allegations in the SOR, and you will have the opportunity to testify, offer written evidence that supports your case, elicit testimony from witnesses you choose to bring to the hearing, cross examine any Government witnesses, and finally, to give a closing argument where you try to persuade the Administrative Judge that you should be granted a security clearance. Keep in mind that the DC is allowed to cross examine you and any of your witnesses.

It should be noted that in the vast majority of cases, the final decision to grant or deny a security clearance is a discretionary one, which will be based on the unique facts of the particular case and the DoD adjudicative guidelines. However, there is one exception. Under current law, if you are considered by the adjudicator or the Administrative Judge to be “an unlawful user of a controlled substance or… an addict,” you are automatically barred from receiving a DoD security clearance. (This bar is not limited to users of illegal drugs; it also applies to users of legal, prescription drugs if such use is abusive.) This means the adjudicator and Administrative Judge have no discretion to grant you a security clearance; your request must be denied. As a practical matter, if you immediately stop this activity when first applying for the security clearance, the chances are good that by the time the final decision is made in your case, you will no longer be subject to this automatic bar.

After the Administrative Judge issues his or her decision, either you or the DC can appeal the decision to the DOHA Appeal Board. The Appeal Board cannot accept any new evidence; it only reviews the evidence that was offered at the DOHA Hearing. It is therefore essential that all the evidence you want to be considered by DOHA be offered before or at the hearing. The Appeal Board reviews the Administrative Judge’s decision for legal error only. The end result of this is that it is very difficult to get the Appeal Board to overturn an Administrative Judge’s decision not to grant a security clearance request.

If the Administrative Judge decides you should not be granted a security clearance and you don’t appeal the decision, you must wait one year from the date of the Administrative Judge’s decision to reapply for a security clearance. If your employer initiates the process for you, DOHA will send you a letter asking you, in essence, what has changed since the Administrative Judge’s decision that would lead DOHA to conclude a different result might be reached this time. If you can convince DOHA to reopen the case, the process starts all over again.

How Defense Contractors Get a Facility Security Clearance

Having a Facility Clearance (FCL) makes a business attractive, but that desire does not provide the needed justification for obtaining a security clearance. The FCL is strictly contract based and demonstrates an enterprise’s trustworthiness. A company is eligible for a facility security clearance after the award of a classified contract. The FCL is a result of a lengthy investigation and the subsequent government’s determination that a company is eligible to have access to classified information.

A company can bid on a classified contract without possessing a facility clearance, but is sponsored for a clearance after the contract is awarded. The interested company cannot simply request its own FCL, but must be sponsored by the Government Contracting Activity (GCA) or a prime contractor. Once the need to conduct classified work is determined, the next requirements are administrative. The company has to submit proof that they are structured and a legal entity under the laws of the United States, the District of Columbia or Puerto Rico and have a physical location in the United States or her territories. The enterprise has to be in good business standing and neither the company nor key managers can be barred from participating in U.S. Government contracts.

The company being sponsored for a clearance should immediately obtain the federal regulations necessary to determine the government’s guidance for working with classified material. For Department of Defense contractors, the National Industrial Security Program Operating Manual (NISPOM) is the most frequently used. The sooner the contractor obtains their copy of the regulations, the quicker they will begin to understand their expected role in protecting the nation’s secrets.

A critical piece of the sponsorship program revolves around the Cognizant Security Agency (CSA) having a good understanding of the subject company and their mission. To do this, the CSA will need to review organizational structure and governance documentation to determine who can commit the company and make decisions. This information includes: articles of incorporation, stock records, corporate by-laws and minutes.

The senior company officer, FSO and other key management employees will be processed for a security clearance. The CSA may also want to see proof of citizenship and other information to determine eligibility for a clearance. The other officers and board members may be excluded from the security clearance process if they will not have influence over cleared contractor decisions.

Aside from corporate entity documentation, the CSA will collect and complete additional forms sometime during the FCL process. These forms include, but are not limited to the Department of Defense Security Agreement (DD Form 441), and the Certificate Pertaining to Foreign Interests (SF328). The CSA will advise the contractor on how to fill out the forms and answer any questions the contractor may have.

The DD Form 441 lists the responsibilities of both the cleared contractor and the government. The contractor agrees to implement and enforce the security controls necessary to prevent unauthorized disclosure of classified material in accordance with the NISPOM. The contractor also agrees to verify that the subcontractor, customer, individual and any other person has the proper need to know and possesses the security clearance necessary to access classified information. The Government will also instruct the contractor on the proper handling, storage and disposition of classified material usually in the form of the DD Form 254. The Government also agrees to provide security clearances to eligible contractor employees.

The SF 328 is used by the contractor and the CSA to determine whether or not and to what extent the cleared contractor falls under Foreign Ownership Control and Influence (FOCI). The primary concern is always protecting classified information from unauthorized disclosure. In today’s changing world it is not unusual for a cleared company to be involved with international business. If classified contracts are under the control of a foreign entity, the classified information could be in jeopardy of unauthorized disclosure. Additionally, items that fall under the International Traffic and Arms Regulation ( ITAR ) could be in jeopardy of unauthorized export. If a contractor falls under FOCI, the CSA will evaluate their ability to mitigate the extent of foreign influence concerning classified information and approve, deny or revoke the FCL. Companies that are determined to fall under FOCI can still compete for classified work; however, there are measures to be taken to ensure that only U.S. persons control the scope of classified work.

The FCL is a determination that a legal entity is trustworthy and able to safeguard classified information. This FCL relates to an organization and not a physical location or building. For example, a cleared contractor organization can move locations and keep the FCL. The FCL remains in place until either party terminates it. If for some reason the contractor no longer needs access or is no longer eligible for access to classified material or either party terminates the FCL, the contractor must return or destroy any classified material to the GCA.