Bill Text: NY A01133 | 2019-2020 | General Assembly | Amended
NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: Amends procedures for making anatomical gifts; specifies persons authorized to make an anatomical gift under certain circumstances; provides procedures for amending and revoking gifts.
Spectrum: Partisan Bill (Democrat 2-0)
Status: (Introduced - Dead) 2019-12-06 - enacting clause stricken [A01133 Detail]
Download: New_York-2019-A01133-Amended.html
Bill Title: Amends procedures for making anatomical gifts; specifies persons authorized to make an anatomical gift under certain circumstances; provides procedures for amending and revoking gifts.
Spectrum: Partisan Bill (Democrat 2-0)
Status: (Introduced - Dead) 2019-12-06 - enacting clause stricken [A01133 Detail]
Download: New_York-2019-A01133-Amended.html
STATE OF NEW YORK ________________________________________________________________________ 1133--C 2019-2020 Regular Sessions IN ASSEMBLY January 14, 2019 ___________ Introduced by M. of A. GOTTFRIED -- read once and referred to the Committee on Health -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee -- again reported from said committee with amendments, ordered reprinted as amended and recommitted to said committee -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee AN ACT to amend the public health law, in relation to definitions and conforming changes pertaining to anatomical gifts; and to repeal certain provisions of such law relating thereto (Part A); to amend the public health law, in relation to changes in anatomical gift consent (Part B); and to amend the public health law, in relation to changes in anatomical gift revocation and amendment (Part C) The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Legislative intent. The purpose of this legislation is to 2 enact changes to follow the Uniform Anatomical Gift Act (UAGA) as 3 updated in 2006 by the National Conference of Commissioners on Uniform 4 State Laws to enhance the organ donation process. Most states have 5 adopted these changes. While New York has made recent improvements to 6 our organ donation rules and participation rates, we are still way 7 behind most states and, as a result, still face a severe organ shortage. 8 It is estimated that bringing New York's anatomical gift consent rules 9 into agreement with UAGA would produce an additional 100 donors - for a 10 total of 200-300 additional organs available - over five years. 11 § 2. This act enacts into law changes to the anatomical gift process. 12 Each component is wholly contained within a Part identified as Parts A 13 through C. The effective date for each particular provision contained 14 within such Part is set forth in the last section of such Part. Any 15 provision in any section contained within a Part, including the effec- 16 tive date of the Part, which makes a reference to a section "of this EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD03867-06-9A. 1133--C 2 1 act," when used in connection with that particular component, shall be 2 deemed to mean and refer to the corresponding section of the Part in 3 which it is found. Section three of this act sets forth the general 4 effective date of this act. 5 PART A 6 Definitions and conforming changes 7 Section 1. Section 4300 of the public health law, as added by chapter 8 466 of the laws of 1970, is amended to read as follows: 9 § 4300. Definitions. As used in this section, the following terms 10 shall have the following meanings: 11 1. "Bank or storage facility" or "bank" means a hospital, laboratory 12 or other facility licensed or approved under the laws of any state for 13 storage of human bodies or parts thereof, for use in medical education, 14 research, therapy, or transplantation [to individuals]. 15 2. "Decedent" means a deceased individual of any age whose body or 16 part is or may be the source of an anatomical gift and includes a still- 17 born infant or fetus. 18 3. "Donor" means an individual [who makes a gift of all or part of19his] whose body or part is the subject of an anatomical gift. 20 4. "Hospital" means a hospital licensed, accredited, or approved under 21 the laws of any state and includes a hospital operated by the United 22 States Government, a state, or a subdivision thereof, although not 23 required to be licensed under state laws. 24 5. "Part" of a body includes organs, tissues, eyes, bones, arteries, 25 blood, other fluids [and] or other portions of a human body, and "part" 26 includes "parts". 27 6. "Person" means an individual, corporation, government or govern- 28 mental subdivision or agency, business trust, estate, trust, partnership 29 or association, or any other legal entity. 30 7. "Physician" or "surgeon" means a physician or surgeon licensed or 31 authorized to practice under the laws of any state. 32 8. "State" includes any state, district, commonwealth, territory, 33 insular possession, and any other area subject to the legislative 34 authority of the United States of America. 35 9. "Reasonably available" means able to be contacted by a procurement 36 organization without undue effort and willing and able to act in a time- 37 ly manner consistent with existing medical criteria necessary for the 38 making of an anatomical gift. 39 10. "Domestic partner" means a person who, with respect to another 40 person: 41 (a) is formally a party in a domestic partnership or similar relation- 42 ship with the other person, entered into pursuant to the laws of the 43 United States or any state, local or foreign jurisdiction, or registered 44 as the domestic partner of the person with any registry maintained by 45 the employer of either party or any state, municipality, or foreign 46 jurisdiction; or 47 (b) is formally recognized as a beneficiary or covered person under 48 the other person's employment benefits or health insurance; or 49 (c) is dependent or mutually interdependent on the other person for 50 support, as evidenced by the totality of the circumstances indicating a 51 mutual intent to be domestic partners including but not limited to: 52 common ownership or joint leasing of real or personal property; common 53 householding, shared income or shared expenses; children in common; 54 signs of intent to marry or become domestic partners under paragraph (a)A. 1133--C 3 1 or (b) of this subdivision; or the length of the personal relationship 2 of the persons. Each party to a domestic partnership shall be considered 3 to be the domestic partner of the other party. "Domestic partner" shall 4 not include a person who is related to the other person by blood in a 5 manner that would bar marriage to the other person in New York state. 6 "Domestic partner" shall also not include any person who is less than 7 eighteen years of age or who is the adopted child of the other person or 8 who is related by blood in a manner that would bar marriage in New York 9 state to a person who is the lawful spouse of the other person. 10 11. "Anatomical gift" or "gift" means a donation of all or part of a 11 human body to take effect after the donor's death for the purpose of 12 transplantation, therapy, research, or education. 13 12. "Document of gift" means an organ donor card, driver's license 14 authorization to make an anatomical gift, pursuant to paragraph (a) of 15 subdivision one of section five hundred four of the vehicle and traffic 16 law, authorization to make an anatomical gift pursuant to any of the 17 methods in subdivision five of section forty-three hundred ten of this 18 article, or any other written authorization for organ or tissue 19 donation. The term includes a statement or symbol on a driver's license, 20 identification card, or enrollment in a donor registry. 21 13. "Donee" means an individual or entity authorized to accept an 22 anatomical gift pursuant to forty-three hundred two of this article. 23 14. "Guardian" means a person appointed by a court to make decisions 24 regarding the support, care, education, health, or welfare of an indi- 25 vidual. The term does not include a guardian ad litem. 26 15. "Organ procurement organization" means a person designated by the 27 Secretary of the United States Department of Health and Human Services 28 as an organ procurement organization. 29 16. "Parent" means a parent whose parental rights have not been termi- 30 nated. 31 17. "Disinterested witness" means a witness other than the spouse, 32 child, parent, sibling, grandchild, grandparent, domestic partner, or 33 guardian of the individual who makes, amends, revokes, or refuses to 34 make an anatomical gift, or another adult who exhibited special care and 35 concern for the individual. 36 18. "Close friend" means any person, eighteen years of age or older, 37 who is a close friend of the patient, or a relative of the patient other 38 than a spouse, adult child, parent, brother, or sister, who has main- 39 tained regular contact with the patient as to be familiar with the 40 patient's activities, health, and religious or moral beliefs. 41 19. "Refusal" means a record created under section forty-three hundred 42 five of this article that expressly states an intent to bar other 43 persons from making an anatomical gift. 44 20. "Record" means information that is inscribed on a tangible medium 45 or that is stored in an electronic or other medium and is retrievable in 46 perceivable form. 47 21. "Procurement organization" means an eye bank, organ procurement 48 organization, or tissue bank. 49 22. "Eye bank" means a person that is licensed, accredited, or regu- 50 lated under federal or state law to engage in the recovery, screening, 51 testing, processing, storage, or distribution of human eyes or portions 52 of human eyes. 53 23. "Tissue bank" means a person that is licensed, accredited, or 54 regulated under federal or state law to solicit, retrieve, perform donor 55 selection and/or testing, preserve, transport, allocate, distribute, 56 acquire, process, store or arrange for the storage of human tissues forA. 1133--C 4 1 transplantation, transfer, therapy, artificial insemination or implanta- 2 tion, including autogeneic procedures. 3 § 2. Subdivision 5 of section 4303 of the public health law is 4 REPEALED. 5 § 3. This act shall take effect immediately. 6 PART B 7 Changes in anatomical gift consent 8 Section 1. Section 4301 of the public health law, as amended by chap- 9 ter 348 of the laws of 2009, subdivision 1 as amended by chapter 248 of 10 the laws of 2016, is amended to read as follows: 11 § 4301. Persons who may execute an anatomical gift. 1. (a) Any indi- 12 vidual of sound mind and eighteen years of age or more may [give all or13any part of his or her body] make an anatomical gift to take effect upon 14 their death for any purpose specified in section forty-three hundred two 15 of this article, [the gift to take effect upon death] limit an anatom- 16 ical gift to one or more of those purposes, or refuse to make an anatom- 17 ical gift. In any case where the donor has a properly executed [an18organ donor card, driver's license authorization to make an anatomical19gift, pursuant to paragraph (a) of subdivision one of section five20hundred four of the vehicle and traffic law, registered in the New York21state organ and tissue donor registry under section forty-three hundred22ten of this article, or has otherwise given written authorization for23organ or tissue donation,] document of gift, authorization for donation 24 shall not be rescinded [by an objection by a member of any of the class-25es specified in paragraphs (a) through (h) of subdivision two of this26section,] or amended by any other person except upon a showing that the 27 donor revoked the authorization pursuant to section forty-three hundred 28 five of this article. 29 (b) Any person who is sixteen or seventeen years of age and of sound 30 mind may [give all or any part of his or her body] make an anatomical 31 gift to take effect upon their death for any purpose specified in 32 section forty-three hundred two of this article, [the gift to take33effect upon death] limit an anatomical gift to one or more of those 34 purposes, or refuse to make an anatomical gift. In any case where the 35 donor has a properly executed [an organ donor card, driver's license36authorization to make an anatomical gift, pursuant to paragraph (a) of37subdivision one of section five hundred four of the vehicle and traffic38law, or has otherwise given written authorization for organ or tissue39donation] document of gift, notice of such gift shall be provided to the 40 donor's parents or [legal] guardians, and authorization for donation may 41 be rescinded or amended by an objection by a parent or [legal] guardian 42 of the donor at the time of death and prior to the recovery of any organ 43 or tissue if the donor is less than eighteen years of age. An anatomical 44 gift made by an individual more than sixteen years of age but less than 45 eighteen shall otherwise not be rescinded, except upon a showing that 46 the donor revoked the authorization pursuant to section forty-three 47 hundred five of this article. Upon the donor reaching the age of eigh- 48 teen, the donor's consent to donate his or her organs or tissue shall be 49 regarded as consent for authorization to make an anatomical gift pursu- 50 ant to paragraph (a) of this subdivision. 51 (c) In the absence of an express, contrary indication by the donor, an 52 anatomical gift of a part is neither a refusal to give other parts nor a 53 limitation on an individual's ability to make an anatomical gift under 54 subdivision two of section forty-three hundred one of this article.A. 1133--C 5 1 2. [Any of the following persons, in the order of priority stated,2may, when persons in prior classes are not reasonably available, will-3ing, and able to act, at the time of death, and in the absence of actual4notice of contrary indications by the decedent, or actual notice of5opposition by a member of the same class or prior class specified in6paragraph (a), (b), (c), (d), (e), (f), (g) or (h) of this subdivision,7or reason to believe that] (a) In the absence of a gift made by the 8 donor under subdivision one of this section, and in the absence of actu- 9 al notice of contrary indications by the decedent, including religious 10 or moral objections, an anatomical gift [is contrary to the decedent's11religious or moral beliefs, give all or any part] of the decedent's body 12 may be made by any member of the following classes of persons who is 13 reasonably available, in the order of priority listed, for any purpose 14 specified in section forty-three hundred two of this article: 15 [(a)] (i) the person designated as the decedent's health care agent 16 under article twenty-nine-C of this chapter, subject to any written 17 statement in the health care proxy form, 18 [(b)] (ii) the person designated as the decedent's agent in a written 19 instrument under article forty-two of this chapter, subject to any writ- 20 ten statement in the written instrument, 21 [(c)] (iii) the spouse, if not legally separated from the patient, or 22 the domestic partner, 23 [(d)] (iv) a son or daughter eighteen years of age or older, 24 [(e)] (v) either parent, 25 [(f)] (vi) a brother or sister eighteen years of age or older, 26 [(g)] (vii) adult grandchildren of the decedent, 27 (viii) a grandparent of the decedent, 28 (ix) a guardian of the person of the decedent at the time of his 29 death, or 30 [(h)] (x) any other person authorized or under the obligation to 31 dispose of the body. 32 (b) If there is more than one member of a class listed in subparagraph 33 (iv), (vi), (vii) or (viii) of paragraph (a) of this subdivision enti- 34 tled to make an anatomical gift, an anatomical gift may be made by a 35 member of the class unless that member or a person knows of an objection 36 by another member of the class. If an objection is known, the gift may 37 be made only by a majority of the members of the class who are reason- 38 ably available. 39 3. [For the purposes of this section, "reasonably available" means40that a person to be contacted can be contacted without undue effort and41willing and able to act in a timely manner consistent with existing42medical criteria necessary for the making of an anatomical gift.434. For the purposes of this section, "domestic partner" means a person44who, with respect to another person:45(a) is formally a party in a domestic partnership or similar relation-46ship with the other person, entered into pursuant to the laws of the47United States or any state, local or foreign jurisdiction, or registered48as the domestic partner of the person with any registry maintained by49the employer of either party or any state, municipality, or foreign50jurisdiction; or51(b) is formally recognized as a beneficiary or covered person under52the other person's employment benefits or health insurance; or53(c) is dependent or mutually interdependent on the other person for54support, as evidenced by the totality of the circumstances indicating a55mutual intent to be domestic partners including but not limited to:56common ownership or joint leasing of real or personal property; commonA. 1133--C 6 1householding, shared income or shared expenses; children in common;2signs of intent to marry or become domestic partners under paragraph (a)3or (b) of this subdivision; or the length of the personal relationship4of the persons.5Each party to a domestic partnership shall be considered to be the6domestic partner of the other party. "Domestic partner" shall not7include a person who is related to the other person by blood in a manner8that would bar marriage to the other person in New York state. "Domestic9partner" shall also not include any person who is less than eighteen10years of age or who is the adopted child of the other person or who is11related by blood in a manner that would bar marriage in New York state12to a person who is the lawful spouse of the other person.] An anatomical 13 gift may not be made by a person listed in subdivision two of this 14 section if: 15 (a) a person in a prior class is reasonably available; or 16 (b) the person proposing to make an anatomical gift knows of a refusal 17 or contrary indications by the decedent, including that an anatomical 18 gift is contrary to the decedent's religious or moral beliefs. 19 4. Any gift by a person designated in subdivision two of this section 20 shall be by a document signed by him or her or made by his or her tele- 21 graphic, recorded telephonic, or other recorded message. Where a gift is 22 made under this subdivision, either: (a) the donor shall indicate in the 23 document or message that he or she has no actual notice of contrary 24 indications by the decedent and no reason to believe that an anatomical 25 gift is contrary to the decedent's religious or moral beliefs; or (b) an 26 agent of the federally designated organ procurement organization or of 27 the donee shall make reasonable effort to inquire of the donor or other- 28 wise determine that the donor has no actual notice of contrary indi- 29 cations by the decedent and no reason to believe that an anatomical gift 30 is contrary to the decedent's religious or moral beliefs. 31 5. The donee shall not accept the gift under the following circum- 32 stances: 33 (a) the donee has actual notice of contrary indication by the dece- 34 dent; 35 (b) where [the donor has not properly executed an organ donor card,36driver's license authorization to make] an anatomical gift[, pursuant to37paragraph (a) of subdivision one of section five hundred four of the38vehicle and traffic law, registered in the New York state organ and39tissue donor registry under section forty-three hundred ten of this40article, or otherwise given written authorization for organ or tissue41donation, or has revoked any such authorization, and the gift is opposed42by a person or persons in the highest priority available of the classes43specified in paragraph (a), (b), (c), (d), (e), (f), (g) or (h) of44subdivision two of] is not properly made pursuant to this section; or 45 (c) the donee has reason to believe that an anatomical gift is contra- 46 ry to the decedent's religious or moral beliefs. 47 6. A gift of all or part of a body authorizes any examination neces- 48 sary to assure medical acceptability of gift for the purposes intended. 49 7. The rights of the donee created by the gift are paramount to the 50 rights of others except as provided by section forty-three hundred eight 51 of this article. 52 8. The person who documents the making, amending or revoking of an 53 anatomical gift, acting reasonably and in good faith in accordance with 54 this article, may accept an anatomical gift under this article made by a 55 person who represents that he or she is entitled to consent to the 56 donation.A. 1133--C 7 1 § 2. This act shall take effect on the one hundred eightieth day after 2 it shall have become a law; provided, however, that effective immediate- 3 ly, the commissioner of health shall make regulations and take other 4 actions reasonably necessary to implement this act on that date. 5 PART C 6 Changes in anatomical gift revocation and amendment 7 Section 1. Section 4305 of the public health law, as added by chapter 8 466 of the laws of 1970, is amended to read as follows: 9 § 4305. [Revocation] Amendments or revocation of the gift. 1. [If the10will, card, or other document or executed copy thereof has been deliv-11ered to a specified donee, the donor] An individual who has created a 12 document of gift may amend or revoke the gift by: 13 (a) [the execution and delivery to the donee of a signed statement] a 14 record signed by the donor, or 15 (b) an oral statement of revocation made in the presence of two 16 persons, [communicated to the donee] at least one of whom is a disinter- 17 ested witness, or 18 (c) a later-executed document of gift that expressly amends or revokes 19 a previous anatomical gift or portion of an anatomical gift, or 20 (d) a statement during a terminal illness or injury addressed to an 21 attending physician and communicated to the donee, or 22 [(d)] (e) a signed card or document, found on his or her person or in 23 his or her effects. 24 2. (a) Subject to paragraphs (b) and (c) of this subdivision, an indi- 25 vidual authorized to make an anatomical gift pursuant to subdivision two 26 of section forty-three hundred one of this article shall revoke or amend 27 such gift by: 28 (i) a record signed by the donor, or 29 (ii) an oral statement of revocation made in the presence of two 30 persons, at least one of whom is a disinterested witness, or 31 (iii) a later-executed document of gift that expressly amends or 32 revokes a previous anatomical gift or portion of an anatomical gift. 33 (b) If more than one member of a class listed in subparagraph (iv), 34 (vi), (vii) or (viii) of paragraph (a) of subdivision two of section 35 forty-three hundred one of this article is reasonably available, a gift 36 made pursuant to subdivision two of section forty-three hundred one of 37 this article may be amended only if a majority of the reasonably avail- 38 able members agree to the amending of the gift, or revoked only if a 39 majority of the reasonably available members agree to the revoking of 40 the gift or if they are equally divided as to whether to revoke the 41 gift. 42 (c) A revocation is effective only if, before an incision has been 43 made to remove a part from the donor's body or before invasive proce- 44 dures have begun to prepare the recipient, the procurement organization, 45 transplant hospital, or physician or technician knows of the revocation. 46 3. Any document of gift[which has not been delivered to the donee] 47 may be revoked in the manner set out in subdivision one or two of this 48 section or by destruction, cancellation, or mutilation of the document 49 and all executed copies thereof. 50 [3.] 4. Any gift made by a will may be revoked or amended in the 51 manner provided for revocation or amendment of wills or as provided in 52 subdivision one of this section. 53 5. In the absence of contrary indications by the donor, a revocation 54 or amendment of an anatomical gift is not a refusal to make anotherA. 1133--C 8 1 anatomical gift, either by the donor or another person specified in 2 subdivision two of section forty-three hundred one of this article. 3 § 2. This act shall take effect on the one hundred eightieth day after 4 it shall have become a law; provided, however, that effective immediate- 5 ly, the commissioner of health shall make regulations and take other 6 actions reasonably necessary to implement this act on that date. 7 § 3. Severability. If any provision of this act, or any application of 8 any provision of this act, is held to be invalid, or to violate or be 9 inconsistent with any federal law or regulation, that shall not affect 10 the validity or effectiveness of any other provision of this act, or of 11 any other application of any provision of this act, which can be given 12 effect without that provision or application; and to that end, the 13 provisions and applications of this act are severable. 14 § 4. This act shall take effect immediately; provided, however, that 15 the applicable effective dates of Parts A through C of this act shall be 16 as specifically set forth in the last sections of such Parts.
