NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A9523
SPONSOR: Gottfried TITLE OF BILL:
An act to amend the public health law, in relation to definitions and
conforming changes pertaining to anatomical gifts; and to amend a chap-
ter 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
PURPOSE OR GENERAL IDEA OF BILL:
The purpose of this bill is to clarify and improve the laws governing
organ donation to increase the number of donors and donations.
SUMMARY OF SPECIFIC PROVISIONS:
Section 1 would make technical amendments necessary to effectuate the
changes outlined in this bill.
Section 2 would make various technical amendments to terminology. This
section would also amend definitions to allow for organ donations
conducted in accordance with foreign and state laws that are approved by
the Commissioner of Health. The section would also amend the definition
of "organ", which excludes heart valves as they are treated as tissue
donations.
Section 3 would make technical amendments necessary to effectuate the
changes outlined in this bill.
Section 4 would clarify the timing of when an amendment or revocation of
an anatomical gift may be made, and how such an amendment or revocation
interacts with other documents or statements. This section would also
require a majority to revoke an organ donation if there are multiple
people authorized to make a decision relating to organ donation due to
the prospective donor being unable to make a decision.
Section 5 would restore current provisions governing the procedures for
contacting organ procurement organizations. Prohibits a hospital from
withdrawing life-sustaining treatment for an individual that has either
made a gift or who's donation status is unknown until an organ procure-
ment organization is able to advise the applicable family or health care
proxy of the ability to make a donation and receive a response; and
acted upon such response if the decision is to make a donation.
Section 6 would make technical amendments necessary to effectuate the
changes outlined in this bill.
Section 7 would make technical amendments necessary to effectuate the
changes outlined in this bill.
Section 8 would amend definitions to allow for organ donations conducted
in accordance with foreign and state laws that are approved by the
Commissioner of Health and would establish civil and criminal liability
protections for such individuals acting in good faith when making an
organ donation pursuant to these provisions.
Section 9 would make technical amendments necessary to effectuate the
changes outlined in this bill.
Section 10 would make technical amendments necessary to effectuate the
changes outlined in this bill.
Section 11 establishes the effective date.
JUSTIFICATION:
Chapter 742 of the Laws of 2019 made significant changes to the organ
donation process in order to bring New York into greater conformity with
standards recognized in several other states. This bill makes changes to
clarify aspects of this legislation and several modifications to improve
the organ donation process in New York, with the goal of increasing the
number of potential donors and improving the donation process. This
legislation will serve to improve the donation rates, which will result
in more New Yorkers being able to receive life-saving organ and tissue
donations
PRIOR LEGISLATIVE HISTORY:
New Legislation.
FISCAL IMPLICATIONS:
None to the State.
EFFECTIVE DATE:
This act shall take effect immediately; provided, however, that sections
one through ten of this act shall take effect on the same date and in
the same manner as a chapter of the laws of 2019, amending the public
health law relating to definitions and conforming changes pertaining to
anatomical gifts, as proposed in legislative bills numbers S.6000-A and
A.7800-A, takes effect.
STATE OF NEW YORK
________________________________________________________________________
9523
IN ASSEMBLY
January 23, 2020
___________
Introduced by M. of A. GOTTFRIED -- read once and referred to the
Committee on Health
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.
22 § 2. Subdivisions 4, 11 and 12 of section 4300 of the public health
23 law, as added by section 1 of part A of a chapter of the laws of 2019,
24 amending the public health law relating to definitions and conforming
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD11680-11-9
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1 changes pertaining to anatomical gifts, as proposed in legislative bills
2 numbers S. 6000-A and A. 7800-A, are amended to read as follows:
3 4. "Document of gift" means an organ donor card, whole body [organ]
4 donor card, driver's license authorization to make an anatomical gift,
5 pursuant to paragraph (a) of subdivision one of section five hundred
6 four of the vehicle and traffic law, authorization to make an anatomical
7 gift pursuant to any of the methods in subdivision five of section
8 forty-three hundred ten of this article, or any other written authori-
9 zation for an anatomical gift. The term "document of gift" includes a
10 statement on a driver's license, identification card, enrollment in a
11 donor registry, or any other anatomical gift document valid pursuant to
12 the laws of this or any other state or of any document of gift valid
13 pursuant to the laws of any other country appearing on a list of coun-
14 tries maintained by the commissioner for such purpose and published on
15 the department's website.
16 11. ["Human paired organ donation" means the donation and receipt of
17 human organs under the following circumstances:
18 (a) An individual (referred to in this subdivision as the "first
19 donor") desires to make a living donation of a human organ specifically
20 to a particular patient (referred to in this subdivision as "first
21 patient"), but such donor is biologically incompatible as a donor for
22 such patient.
23 (b) A second individual (referred to in this subdivision as the
24 "second donor") desires to make a living donation of a human organ
25 specifically to a second particular patient (referred to in this subdi-
26 vision as the "second patient"), but such donor is biologically incom-
27 patible as a donor for such patient.
28 (c) Subject to paragraph (d) of this subdivision, the first donor is
29 biologically compatible as a donor of a human organ for the second
30 patient, and the second donor is biologically compatible as a donor of a
31 human organ for the first patient.
32 (d) If there is any additional donor-patient pair as described in
33 paragraph (a) or (b) of this subdivision, each donor in the group of
34 donor-patient pairs is biologically compatible as a donor of a human
35 organ for a patient in such group.
36 (e) All donors and patients in the group of donor-patient pairs
37 (whether two pairs, or more than two pairs) enter into a single agree-
38 ment to donate and receive such human organs, respectively, according to
39 such biological compatibility in the group.
40 (f) Other than as described in paragraph (e) of this subdivision, no
41 valuable consideration is knowingly acquired, received, or otherwise
42 transferred with respect to the human organs referred to in such para-
43 graph.
44 12.] "Non-transplant anatomic bank" means any person or facility that
45 solicits, retrieves, performs donor selection and/or testing, preserves,
46 transport, allocates, distributes, acquires, processes, stores, or
47 arranges for the storage of non-transplant anatomic parts, including
48 whole bodies, body segments, organs, or tissues from living or deceased
49 donors, for education and/or research purposes specifically authorized
50 by section forty-three hundred two of this article. The following shall
51 not constitute a non-transplant anatomic bank:
52 (a) Any person or entity that stores non-transplant anatomic parts,
53 except whole bodies and body segments, solely for purposes of research
54 and/or education conducted by such person; provided the person or entity
55 maintains on its premises a properly executed anatomical gift consent
56 document, and
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1 (i) such person or entity is a legal donee pursuant to section forty-
2 three hundred two of this article and obtains all organs/tissues from a
3 tissue bank or non-transplant anatomic bank licensed by the department;
4 or
5 (ii) is a general hospital conducting pathology services or research
6 on non-transplant anatomic parts including whole bodies, recovered from
7 within the facility from a living or deceased source;
8 (b) Any person or entity whose activities within the state of New York
9 are limited to distribution of non-transplant anatomic parts to a tissue
10 bank or non-transplant anatomic bank licensed by the department;
11 (c) Any person or entity that uses prepared slides and/or human-der-
12 ived stem cell lines for purposes of education and/or research; and
13 (d) An employee of the federal government, provided an anatomical gift
14 consent document has been executed in accordance with section forty-
15 three hundred one of this article.
16 12. "Organ" shall have the same definition as in article forty-three-B
17 of this chapter, but shall not be applied to heart valves for the
18 purposes of this article.
19 § 3. Subdivision 4 of section 4301 of the public health law, as added
20 by section 1 of part B of a chapter of the laws of 2019, amending the
21 public health law relating to changes in anatomical gift revocation and
22 amendment, as proposed in legislative bills numbers S. 6000-A and A.
23 7800-A, is amended to read as follows:
24 4. Any gift by a person designated in subdivision two of this section
25 shall be by a document signed by him or her or made by his or her tele-
26 graphic, recorded telephonic, or other recorded message. Where a gift is
27 made under this subdivision, either: (a) the authorizing party shall
28 indicate in the document or message that he or she has no actual notice
29 of contrary indications by the decedent and no reason to believe that an
30 anatomical gift is contrary to the decedent's religious or moral
31 beliefs; or (b) an agent of the [federally designated] organ procurement
32 organization or of the donee shall make reasonable efforts to inquire of
33 the authorizing party or otherwise determine that the authorizing party
34 has no actual notice of contrary indications by the decedent and no
35 reason to believe that an anatomical gift is contrary to the decedent's
36 religious or moral beliefs.
37 § 4. Section 4305 of the public health law, as amended by section 2 of
38 part B of a chapter of the laws of 2019, amending the public health law
39 relating to changes in anatomical gift revocation and amendment, as
40 proposed in legislative bills numbers S. 6000-A and A. 7800-A, is
41 amended to read as follows:
42 § 4305. Amendments or revocation of the gift. 1. An individual who has
43 created a document of gift may only amend or revoke [the] his or her
44 gift by:
45 (a) a record signed, subsequently to the creation of the document of
46 gift by:
47 (i) [the donor] such individual;
48 (ii) another person authorized to make the anatomical gift on behalf
49 of such individual; or
50 (iii) another [individual] person acting at the direction of [the
51 donor] such individual or other person authorized to make the anatomical
52 gift if [those individuals are physically] such individual is unable to
53 sign; or
54 (b) an oral statement of revocation, subsequent to the creation of the
55 gift, made by such individual in the presence of two persons, at least
56 one of whom is a disinterested witness; or
A. 9523 4
1 (c) a later-executed document of gift made by such individual that
2 amends or revokes a previous anatomical gift or portion of an anatomical
3 gift either expressly or by inconsistency; or
4 (d) a statement during a terminal illness or injury addressed to an
5 attending physician and communicated to the donee made by such individ-
6 ual; or
7 (e) a signed card or document, found on [the prospective donor's]
8 such individual's person or in [the prospective donor's] such individ-
9 ual's effects; or
10 (f) [the] such individual's will, created subsequently to the creation
11 of the document of gift, whether or not the will is admitted to probate
12 or invalidated after [the] such individual's death.
13 2. (a) Subject to paragraphs (b) and (c) of this subdivision, [an
14 individual] a person authorized to make an anatomical gift on behalf of
15 another individual pursuant to subdivision two of section forty-three
16 hundred one of this article may revoke or amend such gift by:
17 (i) a record signed by [the donor] that individual; or
18 (ii) an oral statement of revocation, subsequent to the creation of
19 the document of gift, made by that individual in the presence of two
20 persons, at least one of whom is a disinterested witness; or
21 (iii) a later-executed document of gift that amends or revokes a
22 previous anatomical gift or portion of an anatomical gift made by that
23 individual, either expressly or by inconsistency.
24 (b) If more than one member of a class listed in subparagraph (iv),
25 (vi), (vii), or (viii) of paragraph (a) of subdivision two of section
26 forty-three hundred one of this article is reasonably available, a gift
27 made pursuant to subdivision two of section forty-three hundred one of
28 this article [may] shall be amended or revoked only if a majority of the
29 reasonably available members agree [to the amending of the gift, or
30 revoked only if a majority of the reasonably available members agree to
31 the revoking of the gift or if they are equally divided as to whether to
32 revoke the gift].
33 (c) [A] An amendment or revocation is effective only if, before an
34 incision has been made to remove a part from the donor's body or before
35 invasive procedures have begun to prepare the recipient, the procurement
36 organization, transplant hospital, or physician or technician knows of
37 the revocation.
38 3. Any document of gift may be revoked in the manner set out in subdi-
39 vision one or two of this section or by destruction, cancellation, or
40 mutilation of the document and all executed copies thereof.
41 4. Any gift made by a will may be revoked or amended in the manner
42 provided for revocation or amendment of wills or as provided in subdivi-
43 sion one of this section.
44 5. In the absence of contrary indications by the donor, a revocation
45 or amendment of an anatomical gift is not a refusal to make another
46 anatomical gift not otherwise prohibited by the revocation or amendment,
47 either by the prospective donor or another person specified in subdivi-
48 sion two of section forty-three hundred one of this article.
49 § 5. The public health law is amended by adding a new article 43-A to
50 read as follows:
51 ARTICLE 43-A
52 ANATOMICAL GIFT DUTIES OF HOSPITALS AND PROCUREMENT
53 ORGANIZATIONS
A. 9523 5
1 Section 4351. Duties of hospital administrators, organ procurement
2 organizations, banks or storage facilities.
3 § 4351. Duties of hospital administrators, organ procurement organiza-
4 tions, eye banks or tissue banks. 1. (a) When the death of a person in a
5 hospital has occurred or is imminent, the hospital shall contact the
6 organ procurement organization in order to make a preliminary determi-
7 nation of the suitability of the person for organ donation, except where
8 not required by paragraph (c) of this subdivision. If a hospital has
9 ascertained that the individual expressed a desire not to receive life-
10 sustaining treatment, pursuant to section forty-three hundred six-b of
11 this chapter, the hospital shall make the organ procurement organization
12 aware.
13 (b) Where contact with the organ procurement organization is not
14 required under criteria developed regionally by the organ procurement
15 organization subject to the approval of such criteria by the department,
16 the hospital shall contact the appropriate eye bank or tissue bank,
17 except where not required by paragraph (c) of this subdivision.
18 (c) The organ procurement organization, in consultation with the
19 tissue procurement providers, may issue criteria under which a hospital
20 shall not be required to make the contact under this subdivision.
21 (d) All hospitals shall select at least one eye bank or tissue bank
22 for the procurement of tissue, as defined in section forty-three hundred
23 sixty of this chapter. A hospital shall notify the organ procurement
24 organization of its choice of tissue procurement provider. If a hospital
25 selects more than one eye bank or tissue bank, it may specify a rotation
26 of referrals for purposes of tissue procurement.
27 2. Where the organ procurement organization, eye bank or tissue bank
28 is contacted, it shall, in consultation with the hospital, after appro-
29 priate medical screening (which may include serological testing if
30 applicable) determine suitability for organ, eye and tissue donation, as
31 appropriate. Where an organ procurement organization is contacted, it
32 shall contact the appropriate eye bank or tissue bank with respect to
33 suitability for eye or tissue donation.
34 § 6. Subdivisions 5 and 8 of section 4302 of the public health law, as
35 added by section 1 of part C of a chapter of the laws of 2019, amending
36 the public health law relating to uses and dispositions of anatomical
37 gifts, as proposed in legislative bills numbers S. 6000-A and A. 7800-A,
38 are amended to read as follows:
39 5. If a document of gift specifies only a general intent to make an
40 anatomical gift by words such as "donor", "organ donor" or "body donor",
41 or [by] a [symbol or] statement of similar import, the gift may be used
42 only for transplantation or therapy, and the gift passes in accordance
43 with subdivision six of this section.
44 8. If a [potential] prospective donor has been referred to a procure-
45 ment organization or tissue bank pursuant to state or federal law, and
46 the procurement organization has determined that the gift is medically
47 unsuitable for transplant, or to the extent that a non-transplant
48 anatomical gift may still be honored after a gift has been made pursuant
49 to a superseding document of gift, then the procurement organization
50 shall make reasonable efforts to determine whether the donor has previ-
51 ously made a gift of his or her body or parts for education or research,
52 and the procurement organization informed of such gift shall notify the
53 non-transplant anatomic bank of the gift consistent with the donor's
54 intent.
55 § 7. Section 4304 of the public health law, as amended by section 1 of
56 part D of a chapter of the laws of 2019, amending the public health law
A. 9523 6
1 relating to delivery of documents of gift, as proposed in legislative
2 bills numbers S. 6000-A and A. 7800-A, is amended to read as follows:
3 § 4304. Delivery of document of gift. If the gift is made by the donor
4 to a specified donee, the will, card or other document or a copy [there-
5 of] of the executed document, may be delivered to him or her to expedite
6 the appropriate procedures immediately after death; however delivery is
7 not necessary to the validity of the gift. On request of an interested
8 party upon or after the donor's death, the person in possession shall
9 produce the document for examination.
10 § 8. Subdivisions 1, 3 and 4 of section 4306 of the public health law,
11 as amended by section 1 of part E of a chapter of the laws of 2019,
12 amending the public health law relating to rights and duties of donees
13 at death, as proposed in legislative bills numbers S. 6000-A and A.
14 7800-A, are amended to read as follows:
15 1. The donee may accept or reject the gift. If the donee accepts a
16 gift of the entire body, [he or she] the donee may, subject to the terms
17 of the gift, authorize embalming and the use of the body in funeral
18 services. If the gift is of a part of the body, the donee upon the
19 death of the donor and prior to embalming, may cause the part to be
20 removed without unnecessary mutilation. After removal of the part,
21 custody of the remainder of the body vests in the surviving spouse, next
22 of kin, or other persons under obligation to dispose of the body.
23 3. (a) (i) A person who acts in good faith in accord with the terms of
24 this article or with the anatomical gift laws of another [jurisdiction]
25 state, is not liable for damages in any civil action or subject to pros-
26 ecution in any criminal proceeding for his or her act.
27 (ii) A person who acts in good faith in accord with the anatomical
28 gift laws of another country is not liable for damages in any civil
29 action or subject to prosecution in any criminal proceeding for his or
30 her act provided that:
31 (A) such country has anatomical gift laws similar in requirements and
32 effects to the anatomical gift laws of this state;
33 (B) such country appears on a list of such countries promulgated as a
34 regulation by the department for such purpose; and
35 (C) such country appeared on such list at the time of such act.
36 (b) A person who documents the making, amending or revoking of an
37 anatomical gift, acting reasonably and in good faith in accordance with
38 this article, may accept an anatomical gift under this article made by a
39 person who represents that [he or she] the person is an authorized
40 person under section forty-three hundred one of this article and is
41 entitled to consent to the donation.
42 (c) An entity under section forty-three hundred two or forty-three
43 hundred ten of this article or a health care professional, or an agent
44 or employee thereof, who or which documents, records, recovers,
45 procures, obtains, or utilizes an organ or tissue in reasonable and good
46 faith reliance on information provided to or contained in the New York
47 state donate life registry shall not be liable in any civil or criminal
48 action or proceeding for action based on such reliance.
49 4. Any employee or agent of [a federally designated] an organ procure-
50 ment organization, eye bank or tissue bank acting pursuant to this arti-
51 cle shall be held to the same standard of confidentiality as that
52 imposed on employees of a hospital.
53 § 9. Subdivision 1 of section 4306-a of the public health law, as
54 added by section 1 of part F of a chapter of the laws of 2019, amending
55 the public health law relating to interactions between advance direc-
A. 9523 7
1 tives and anatomical gifts, as proposed in legislative bills numbers S.
2 6000-A and A. 7800-A, is amended to read as follows:
3 1. If a [patient] prospective donor in a hospital has a declaration or
4 advance health care directive [or proxy document pursuant to article
5 twenty-nine-C of this chapter,] and terms of the declaration, directive
6 or proxy document concerning life-sustaining treatment are in conflict
7 with the express or implied terms of a potential anatomical gift with
8 regard to the administration of measures necessary to ensure the medical
9 suitability of a part for transplantation or therapy, the prospective
10 donor's attending physician and the prospective donor shall confer to
11 resolve the conflict. For purposes of this section, an advance directive
12 shall mean a written or oral instruction by the adult patient relating
13 to the provision of health care to the patient when an adult becomes
14 incapacitated, including but not limited to a health care proxy, a
15 consent to the issuance of an order not to resuscitate or other orders
16 for life-sustaining treatment recorded in a patient's medical record, or
17 a legally-recognized statement of wishes or beliefs.
18 § 10. Subdivision 1 of section 4307 of the public health law, as
19 amended by section 1 of part G of a chapter of the laws of 2019, amend-
20 ing the public health law relating to prohibition of sales or purchase
21 of human organs, as proposed in legislative bills numbers S. 6000-A and
22 A. 7800-A, is amended to read as follows:
23 1. It shall be unlawful for any person to knowingly acquire, receive,
24 or otherwise transfer for valuable consideration any part for use in
25 human transplantation. The term "valuable consideration" does not
26 include the reasonable payments associated with the removal, transporta-
27 tion, implantation, processing, preservation, quality control, and stor-
28 age of a part or the expenses of travel, housing, and lost wages
29 incurred by the donor of a human [organ] part in connection with the
30 donation of the [organ or human paired organ] part or living donation.
31 Any person who violates this section shall be guilty of a class E felo-
32 ny.
33 § 11. This act shall take effect immediately; provided, however, that
34 sections one through ten of this act shall take effect on the same date
35 and in the same manner as a chapter of the laws of 2019, amending the
36 public health law relating to definitions and conforming changes
37 pertaining to anatomical gifts, as proposed in legislative bills numbers
38 S. 6000-A and A. 7800-A, takes effect.
