Bill Text: NY S06941 | 2019-2020 | General Assembly | Introduced

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Bill Title: Relates to anatomical gifts; provides for anatomical gift duties of hospitals and procurement organizations; makes technical corrections.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Passed) 2020-04-17 - SIGNED CHAP.45 [S06941 Detail]

Download: New_York-2019-S06941-Introduced.html

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                STATE OF NEW YORK
        ________________________________________________________________________

                                          6941

                               2019-2020 Regular Sessions

                    IN SENATE

                                     January 6, 2019
                                       ___________

        Introduced  by  Sen.  RIVERA -- read twice and ordered printed, and when
          printed to be committed to the Committee on Rules

        AN ACT to amend the public health law, in relation  to  definitions  and
          conforming  changes  pertaining  to  anatomical  gifts; and to amend a
          chapter of the laws of 2019 amending the public health law relating to
          anatomical gifts, as proposed in legislative bills numbers  S.  6000-A
          and A. 7800-A, in relation to making technical corrections thereto

          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:

     1    Section 1. Section 1 of a chapter of the laws of  2019,  amending  the
     2  public  health law relating to anatomical gifts, as proposed in legisla-
     3  tive bills numbers S. 6000-A and A.   7800-A,  is  amended  to  read  as
     4  follows:
     5    Section  1.  Legislative intent. The purpose of this legislation is to
     6  incorporate the amended provisions of the Uniform  Anatomical  Gift  Act
     7  (UAGA) as drafted by the National Conference of Commissioners on Uniform
     8  State  Laws to enhance the organ donation process.  The UAGA was enacted
     9  in 1968 following the first successful heart transplant and was  revised
    10  in 1987 and 2006 to clarify consent rules and other processes. While New
    11  York  has  made  recent  improvements to its organ donation registry and
    12  processes, it still faces a severe organ shortage.  It is estimated that
    13  bringing New York's anatomical gift consent rules alone  into  agreement
    14  with  the  UAGA  would  result  in increased numbers of organ donors and
    15  would save lives through transplantation. Provisions of this act  should
    16  not  be  construed  to  interfere with a [potential] prospective donor's
    17  recorded intent to make a whole body donation  in  instances  where  the
    18  [potential]  prospective  donor's  body is suitable for such donation at
    19  death, nor does the gift of a whole body preclude  donation  for  trans-
    20  plant,  unless such use is expressly refused by the donor or the author-
    21  izing party.

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD11680-11-9
        S. 6941                             2

     1    § 2. Subdivisions 4, 11 and 12 of section 4300 of  the  public  health
     2  law,  as  added by section 1 of part A of a chapter of the laws of 2019,
     3  amending the public health law relating to  definitions  and  conforming
     4  changes pertaining to anatomical gifts, as proposed in legislative bills
     5  numbers S. 6000-A and A. 7800-A, are amended to read as follows:
     6    4.  "Document  of  gift" means an organ donor card, whole body [organ]
     7  donor card, driver's license authorization to make an  anatomical  gift,
     8  pursuant  to  paragraph  (a)  of subdivision one of section five hundred
     9  four of the vehicle and traffic law, authorization to make an anatomical
    10  gift pursuant to any of the  methods  in  subdivision  five  of  section
    11  forty-three  hundred  ten of this article, or any other written authori-
    12  zation for an anatomical gift. The term "document of  gift"  includes  a
    13  statement  on  a  driver's license, identification card, enrollment in a
    14  donor registry, or any other anatomical gift document valid pursuant  to
    15  the  laws  of  this  or any other state or of any document of gift valid
    16  pursuant to the laws of any other country appearing on a list  of  coun-
    17  tries  maintained  by the commissioner for such purpose and published on
    18  the department's website.
    19    11. ["Human paired organ donation" means the donation and  receipt  of
    20  human organs under the following circumstances:
    21    (a)  An  individual  (referred  to  in  this subdivision as the "first
    22  donor") desires to make a living donation of a human organ  specifically
    23  to  a  particular  patient  (referred  to  in this subdivision as "first
    24  patient"), but such donor is biologically incompatible as  a  donor  for
    25  such patient.
    26    (b)  A  second  individual  (referred  to  in  this subdivision as the
    27  "second donor") desires to make a  living  donation  of  a  human  organ
    28  specifically  to a second particular patient (referred to in this subdi-
    29  vision as the "second patient"), but such donor is  biologically  incom-
    30  patible as a donor for such patient.
    31    (c)  Subject  to paragraph (d) of this subdivision, the first donor is
    32  biologically compatible as a donor of  a  human  organ  for  the  second
    33  patient, and the second donor is biologically compatible as a donor of a
    34  human organ for the first patient.
    35    (d)  If  there  is  any  additional donor-patient pair as described in
    36  paragraph (a) or (b) of this subdivision, each donor  in  the  group  of
    37  donor-patient  pairs  is  biologically  compatible as a donor of a human
    38  organ for a patient in such group.
    39    (e) All donors and  patients  in  the  group  of  donor-patient  pairs
    40  (whether  two  pairs, or more than two pairs) enter into a single agree-
    41  ment to donate and receive such human organs, respectively, according to
    42  such biological compatibility in the group.
    43    (f) Other than as described in paragraph (e) of this  subdivision,  no
    44  valuable  consideration  is  knowingly  acquired, received, or otherwise
    45  transferred with respect to the human organs referred to in  such  para-
    46  graph.
    47    12.]  "Non-transplant anatomic bank" means any person or facility that
    48  solicits, retrieves, performs donor selection and/or testing, preserves,
    49  transport,  allocates,  distributes,  acquires,  processes,  stores,  or
    50  arranges  for  the  storage  of non-transplant anatomic parts, including
    51  whole bodies, body segments, organs, or tissues from living or  deceased
    52  donors,  for  education and/or research purposes specifically authorized
    53  by section forty-three hundred two of this article. The following  shall
    54  not constitute a non-transplant anatomic bank:
    55    (a)  Any  person  or entity that stores non-transplant anatomic parts,
    56  except whole bodies and body segments, solely for purposes  of  research
        S. 6941                             3

     1  and/or education conducted by such person; provided the person or entity
     2  maintains  on  its  premises a properly executed anatomical gift consent
     3  document, and
     4    (i)  such person or entity is a legal donee pursuant to section forty-
     5  three hundred two of this article and obtains all organs/tissues from  a
     6  tissue  bank or non-transplant anatomic bank licensed by the department;
     7  or
     8    (ii) is a general hospital conducting pathology services  or  research
     9  on  non-transplant anatomic parts including whole bodies, recovered from
    10  within the facility from a living or deceased source;
    11    (b) Any person or entity whose activities within the state of New York
    12  are limited to distribution of non-transplant anatomic parts to a tissue
    13  bank or non-transplant anatomic bank licensed by the department;
    14    (c) Any person or entity that uses prepared slides  and/or  human-der-
    15  ived stem cell lines for purposes of education and/or research; and
    16    (d) An employee of the federal government, provided an anatomical gift
    17  consent  document  has  been  executed in accordance with section forty-
    18  three hundred one of this article.
    19    12. "Organ" shall have the same definition as in article forty-three-B
    20  of this chapter, but shall not  be  applied  to  heart  valves  for  the
    21  purposes of this article.
    22    §  3. Subdivision 4 of section 4301 of the public health law, as added
    23  by section 1 of part B of a chapter of the laws of  2019,  amending  the
    24  public  health law relating to changes in anatomical gift revocation and
    25  amendment, as proposed in legislative bills numbers  S.  6000-A  and  A.
    26  7800-A, is amended to read as follows:
    27    4.  Any gift by a person designated in subdivision two of this section
    28  shall be by a document signed by him or her or made by his or her  tele-
    29  graphic, recorded telephonic, or other recorded message. Where a gift is
    30  made  under  this subdivision, either:   (a) the authorizing party shall
    31  indicate in the document or message that he or she has no actual  notice
    32  of contrary indications by the decedent and no reason to believe that an
    33  anatomical  gift  is  contrary  to  the  decedent's  religious  or moral
    34  beliefs; or (b) an agent of the [federally designated] organ procurement
    35  organization or of the donee shall make reasonable efforts to inquire of
    36  the authorizing party or otherwise determine that the authorizing  party
    37  has  no  actual  notice  of  contrary indications by the decedent and no
    38  reason to believe that an anatomical gift is contrary to the  decedent's
    39  religious or moral beliefs.
    40    § 4. Section 4305 of the public health law, as amended by section 2 of
    41  part  B of a chapter of the laws of 2019, amending the public health law
    42  relating to changes in anatomical  gift  revocation  and  amendment,  as
    43  proposed  in  legislative  bills  numbers  S.  6000-A  and A. 7800-A, is
    44  amended to read as follows:
    45    § 4305. Amendments or revocation of the gift. 1. An individual who has
    46  created a document of gift may only amend or revoke  [the]  his  or  her
    47  gift by:
    48    (a)  a  record signed, subsequently to the creation of the document of
    49  gift by:
    50    (i) [the donor] such individual;
    51    (ii) another person authorized to make the anatomical gift  on  behalf
    52  of such individual; or
    53    (iii)  another  [individual]  person  acting  at the direction of [the
    54  donor] such individual or other person authorized to make the anatomical
    55  gift if [those individuals are physically] such individual is unable  to
    56  sign; or
        S. 6941                             4

     1    (b) an oral statement of revocation, subsequent to the creation of the
     2  gift,  made  by such individual in the presence of two persons, at least
     3  one of whom is a disinterested witness; or
     4    (c)  a  later-executed  document  of gift made by such individual that
     5  amends or revokes a previous anatomical gift or portion of an anatomical
     6  gift either expressly or by inconsistency; or
     7    (d) a statement during a terminal illness or injury  addressed  to  an
     8  attending  physician and communicated to the donee made by such individ-
     9  ual; or
    10    (e) a signed card or document, found on  [the  prospective    donor's]
    11  such  individual's  person or in [the prospective donor's] such individ-
    12  ual's effects; or
    13    (f) [the] such individual's will, created subsequently to the creation
    14  of the document of gift, whether or not the will is admitted to  probate
    15  or invalidated after [the] such individual's death.
    16    2.  (a)  Subject  to  paragraphs  (b) and (c) of this subdivision, [an
    17  individual] a person authorized to make an anatomical gift on behalf  of
    18  another  individual  pursuant  to subdivision two of section forty-three
    19  hundred one of this article may revoke or amend such gift by:
    20    (i) a record signed by [the donor] that individual; or
    21    (ii) an oral statement of revocation, subsequent to  the  creation  of
    22  the  document  of  gift,  made by that individual in the presence of two
    23  persons, at least one of whom is a disinterested witness; or
    24    (iii) a later-executed document of  gift  that  amends  or  revokes  a
    25  previous  anatomical  gift or portion of an anatomical gift made by that
    26  individual, either expressly or by inconsistency.
    27    (b) If more than one member of a class listed  in  subparagraph  (iv),
    28  (vi),  (vii),  or  (viii) of paragraph (a) of subdivision two of section
    29  forty-three hundred one of this article is reasonably available, a  gift
    30  made  pursuant  to subdivision two of section forty-three hundred one of
    31  this article [may] shall be amended or revoked only if a majority of the
    32  reasonably available members agree [to the  amending  of  the  gift,  or
    33  revoked  only if a majority of the reasonably available members agree to
    34  the revoking of the gift or if they are equally divided as to whether to
    35  revoke the gift].
    36    (c) [A] An amendment or revocation is effective  only  if,  before  an
    37  incision  has been made to remove a part from the donor's body or before
    38  invasive procedures have begun to prepare the recipient, the procurement
    39  organization, transplant hospital, or physician or technician  knows  of
    40  the revocation.
    41    3. Any document of gift may be revoked in the manner set out in subdi-
    42  vision  one  or  two of this section or by destruction, cancellation, or
    43  mutilation of the document and all executed copies thereof.
    44    4. Any gift made by a will may be revoked or  amended  in  the  manner
    45  provided for revocation or amendment of wills or as provided in subdivi-
    46  sion one of this section.
    47    5.  In  the absence of contrary indications by the donor, a revocation
    48  or amendment of an anatomical gift is not  a  refusal  to  make  another
    49  anatomical gift not otherwise prohibited by the revocation or amendment,
    50  either  by the prospective donor or another person specified in subdivi-
    51  sion two of section forty-three hundred one of this article.
    52    § 5. The public health law is amended by adding a new article 43-A  to
    53  read as follows:
        S. 6941                             5

     1                                ARTICLE 43-A
     2             ANATOMICAL GIFT DUTIES OF HOSPITALS AND PROCUREMENT
     3                                ORGANIZATIONS

     4  Section 4351. Duties   of  hospital  administrators,  organ  procurement
     5                  organizations, banks or storage facilities.
     6    § 4351. Duties of hospital administrators, organ procurement organiza-
     7  tions, eye banks or tissue banks. 1. (a) When the death of a person in a
     8  hospital has occurred or is imminent, the  hospital  shall  contact  the
     9  organ  procurement  organization in order to make a preliminary determi-
    10  nation of the suitability of the person for organ donation, except where
    11  not required by paragraph (c) of this subdivision.   If a  hospital  has
    12  ascertained  that the individual expressed a desire not to receive life-
    13  sustaining treatment, pursuant to section forty-three hundred  six-b  of
    14  this chapter, the hospital shall make the organ procurement organization
    15  aware.
    16    (b)  Where  contact  with  the  organ  procurement organization is not
    17  required under criteria developed regionally by  the  organ  procurement
    18  organization subject to the approval of such criteria by the department,
    19  the  hospital  shall  contact  the  appropriate eye bank or tissue bank,
    20  except where not required by paragraph (c) of this subdivision.
    21    (c) The organ  procurement  organization,  in  consultation  with  the
    22  tissue  procurement providers, may issue criteria under which a hospital
    23  shall not be required to make the contact under this subdivision.
    24    (d) All hospitals shall select at least one eye bank  or  tissue  bank
    25  for the procurement of tissue, as defined in section forty-three hundred
    26  sixty  of  this  chapter.  A hospital shall notify the organ procurement
    27  organization of its choice of tissue procurement provider. If a hospital
    28  selects more than one eye bank or tissue bank, it may specify a rotation
    29  of referrals for purposes of tissue procurement.
    30    2. Where the organ procurement organization, eye bank or  tissue  bank
    31  is  contacted, it shall, in consultation with the hospital, after appro-
    32  priate medical screening  (which  may  include  serological  testing  if
    33  applicable) determine suitability for organ, eye and tissue donation, as
    34  appropriate.  Where  an  organ procurement organization is contacted, it
    35  shall contact the appropriate eye bank or tissue bank  with  respect  to
    36  suitability for eye or tissue donation.
    37    § 6. Subdivisions 5 and 8 of section 4302 of the public health law, as
    38  added  by section 1 of part C of a chapter of the laws of 2019, amending
    39  the public health law relating to uses and  dispositions  of  anatomical
    40  gifts, as proposed in legislative bills numbers S. 6000-A and A. 7800-A,
    41  are amended to read as follows:
    42    5.  If  a  document of gift specifies only a general intent to make an
    43  anatomical gift by words such as "donor", "organ donor" or "body donor",
    44  or [by] a [symbol or] statement of similar import, the gift may be  used
    45  only  for  transplantation or therapy, and the gift passes in accordance
    46  with subdivision six of this section.
    47    8. If a [potential] prospective donor has been referred to a  procure-
    48  ment  organization  or tissue bank pursuant to state or federal law, and
    49  the procurement organization has determined that the gift  is  medically
    50  unsuitable  for  transplant,  or  to  the  extent  that a non-transplant
    51  anatomical gift may still be honored after a gift has been made pursuant
    52  to a superseding document of gift,  then  the  procurement  organization
    53  shall  make reasonable efforts to determine whether the donor has previ-
    54  ously made a gift of his or her body or parts for education or research,
    55  and the procurement organization informed of such gift shall notify  the
        S. 6941                             6

     1  non-transplant  anatomic  bank  of  the gift consistent with the donor's
     2  intent.
     3    § 7. Section 4304 of the public health law, as amended by section 1 of
     4  part  D of a chapter of the laws of 2019, amending the public health law
     5  relating to delivery of documents of gift, as  proposed  in  legislative
     6  bills numbers S. 6000-A and A. 7800-A, is amended to read as follows:
     7    § 4304. Delivery of document of gift. If the gift is made by the donor
     8  to a specified donee, the will, card or other document or a copy [there-
     9  of] of the executed document, may be delivered to him or her to expedite
    10  the  appropriate procedures immediately after death; however delivery is
    11  not necessary to the validity of the gift.  On request of an  interested
    12  party  upon  or  after the donor's death, the person in possession shall
    13  produce the document for examination.
    14    § 8. Subdivisions 1, 3 and 4 of section 4306 of the public health law,
    15  as amended by section 1 of part E of a chapter  of  the  laws  of  2019,
    16  amending  the  public health law relating to rights and duties of donees
    17  at death, as proposed in legislative bills  numbers  S.  6000-A  and  A.
    18  7800-A, are amended to read as follows:
    19    1.  The  donee  may  accept or reject the gift. If the donee accepts a
    20  gift of the entire body, [he or she] the donee may, subject to the terms
    21  of the gift, authorize embalming and the use  of  the  body  in  funeral
    22  services.    If  the  gift  is of a part of the body, the donee upon the
    23  death of the donor and prior to embalming, may  cause  the  part  to  be
    24  removed  without  unnecessary  mutilation.  After  removal  of the part,
    25  custody of the remainder of the body vests in the surviving spouse, next
    26  of kin, or other persons under obligation to dispose of the body.
    27    3. (a) (i) A person who acts in good faith in accord with the terms of
    28  this article or with the anatomical gift laws of another  [jurisdiction]
    29  state, is not liable for damages in any civil action or subject to pros-
    30  ecution in any criminal proceeding for his or her act.
    31    (ii)  A  person  who  acts in good faith in accord with the anatomical
    32  gift laws of another country is not liable  for  damages  in  any  civil
    33  action  or  subject to prosecution in any criminal proceeding for his or
    34  her act provided that:
    35    (A) such country has anatomical gift laws similar in requirements  and
    36  effects to the anatomical gift laws of this state;
    37    (B)  such country appears on a list of such countries promulgated as a
    38  regulation by the department for such purpose; and
    39    (C) such country appeared on such list at the time of such act.
    40    (b) A person who documents the making,  amending  or  revoking  of  an
    41  anatomical  gift, acting reasonably and in good faith in accordance with
    42  this article, may accept an anatomical gift under this article made by a
    43  person who represents that [he or  she]  the  person  is  an  authorized
    44  person  under  section  forty-three  hundred  one of this article and is
    45  entitled to consent to the donation.
    46    (c) An entity under section forty-three  hundred  two  or  forty-three
    47  hundred  ten  of this article or a health care professional, or an agent
    48  or  employee  thereof,  who  or  which  documents,  records,   recovers,
    49  procures, obtains, or utilizes an organ or tissue in reasonable and good
    50  faith  reliance  on information provided to or contained in the New York
    51  state donate life registry shall not be liable in any civil or  criminal
    52  action or proceeding for action based on such reliance.
    53    4. Any employee or agent of [a federally designated] an organ procure-
    54  ment organization, eye bank or tissue bank acting pursuant to this arti-
    55  cle  shall  be  held  to  the  same  standard of confidentiality as that
    56  imposed on employees of a hospital.
        S. 6941                             7

     1    § 9. Subdivision 1 of section 4306-a of  the  public  health  law,  as
     2  added  by section 1 of part F of a chapter of the laws of 2019, amending
     3  the public health law relating to interactions  between  advance  direc-
     4  tives  and anatomical gifts, as proposed in legislative bills numbers S.
     5  6000-A and A. 7800-A, is amended to read as follows:
     6    1. If a [patient] prospective donor in a hospital has a declaration or
     7  advance  health  care  directive  [or proxy document pursuant to article
     8  twenty-nine-C of this chapter,] and terms of the declaration,  directive
     9  or  proxy  document concerning life-sustaining treatment are in conflict
    10  with the express or implied terms of a potential  anatomical  gift  with
    11  regard to the administration of measures necessary to ensure the medical
    12  suitability  of  a  part for transplantation or therapy, the prospective
    13  donor's attending physician and the prospective donor  shall  confer  to
    14  resolve the conflict. For purposes of this section, an advance directive
    15  shall  mean  a written or oral instruction by the adult patient relating
    16  to the provision of health care to the patient  when  an  adult  becomes
    17  incapacitated,  including  but  not  limited  to  a health care proxy, a
    18  consent to the issuance of an order not to resuscitate or  other  orders
    19  for life-sustaining treatment recorded in a patient's medical record, or
    20  a legally-recognized statement of wishes or beliefs.
    21    §  10.  Subdivision  1  of  section  4307 of the public health law, as
    22  amended by section 1 of part G of a chapter of the laws of 2019,  amend-
    23  ing  the  public health law relating to prohibition of sales or purchase
    24  of human organs, as proposed in legislative bills numbers S. 6000-A  and
    25  A. 7800-A, is amended to read as follows:
    26    1.  It shall be unlawful for any person to knowingly acquire, receive,
    27  or otherwise transfer for valuable consideration any  part  for  use  in
    28  human  transplantation.    The  term  "valuable  consideration" does not
    29  include the reasonable payments associated with the removal, transporta-
    30  tion, implantation, processing, preservation, quality control, and stor-
    31  age of a part or  the  expenses  of  travel,  housing,  and  lost  wages
    32  incurred  by  the  donor  of a human [organ] part in connection with the
    33  donation of the [organ or human paired organ]  part or living  donation.
    34  Any  person who violates this section shall be guilty of a class E felo-
    35  ny.
    36    § 11. This act shall take effect immediately; provided, however,  that
    37  sections  one through ten of this act shall take effect on the same date
    38  and in the same manner as a chapter of the laws of  2019,  amending  the
    39  public  health  law  relating  to  definitions  and  conforming  changes
    40  pertaining to anatomical gifts, as proposed in legislative bills numbers
    41  S. 6000-A and A. 7800-A, takes effect.