Bill Text: NY S01342 | 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: (Engrossed - Dead) 2020-01-09 - RECOMMIT, ENACTING CLAUSE STRICKEN [S01342 Detail]
Download: New_York-2019-S01342-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: (Engrossed - Dead) 2020-01-09 - RECOMMIT, ENACTING CLAUSE STRICKEN [S01342 Detail]
Download: New_York-2019-S01342-Amended.html
STATE OF NEW YORK ________________________________________________________________________ 1342--A 2019-2020 Regular Sessions IN SENATE January 14, 2019 ___________ Introduced by Sen. RIVERA -- read twice and ordered printed, and when printed to be committed to the Committee on Health -- 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 17 act," when used in connection with that particular component, shall be 18 deemed to mean and refer to the corresponding section of the Part in EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD03867-03-9S. 1342--A 2 1 which it is found. Section three of this act sets forth the general 2 effective date of this act. 3 PART A 4 Definitions and conforming changes 5 Section 1. Section 4300 of the public health law, as added by chapter 6 466 of the laws of 1970, is amended to read as follows: 7 § 4300. Definitions. As used in this section, the following terms 8 shall have the following meanings: 9 1. "Bank or storage facility" or "bank" means a hospital, laboratory 10 or other facility licensed or approved under the laws of any state for 11 storage of human bodies or parts thereof, for use in medical education, 12 research, therapy, or transplantation [to individuals]. 13 2. "Decedent" means a deceased individual of any age whose body or 14 part is or may be the source of an anatomical gift and includes a still- 15 born infant or fetus. 16 3. "Donor" means an individual [who makes a gift of all or part of17his] whose body or part is the subject of an anatomical gift. 18 4. "Hospital" means a hospital licensed, accredited, or approved under 19 the laws of any state and includes a hospital operated by the United 20 States Government, a state, or a subdivision thereof, although not 21 required to be licensed under state laws. 22 5. "Part" of a body includes organs, tissues, eyes, bones, arteries, 23 blood, other fluids [and] or other portions of a human body, and "part" 24 includes "parts". 25 6. "Person" means an individual, corporation, government or govern- 26 mental subdivision or agency, business trust, estate, trust, partnership 27 or association, or any other legal entity. 28 7. "Physician" or "surgeon" means a physician or surgeon licensed or 29 authorized to practice under the laws of any state. 30 8. "State" includes any state, district, commonwealth, territory, 31 insular possession, and any other area subject to the legislative 32 authority of the United States of America. 33 9. "Reasonably available" means able to be contacted by a procurement 34 organization without undue effort and willing and able to act in a time- 35 ly manner consistent with existing medical criteria necessary for the 36 making of an anatomical gift. 37 10. "Domestic partner" means a person who, with respect to another 38 person: 39 (a) is formally a party in a domestic partnership or similar relation- 40 ship with the other person, entered into pursuant to the laws of the 41 United States or any state, local or foreign jurisdiction, or registered 42 as the domestic partner of the person with any registry maintained by 43 the employer of either party or any state, municipality, or foreign 44 jurisdiction; or 45 (b) is formally recognized as a beneficiary or covered person under 46 the other person's employment benefits or health insurance; or 47 (c) is dependent or mutually interdependent on the other person for 48 support, as evidenced by the totality of the circumstances indicating a 49 mutual intent to be domestic partners including but not limited to: 50 common ownership or joint leasing of real or personal property; common 51 householding, shared income or shared expenses; children in common; 52 signs of intent to marry or become domestic partners under paragraph (a) 53 or (b) of this subdivision; or the length of the personal relationship 54 of the persons. Each party to a domestic partnership shall be consideredS. 1342--A 3 1 to be the domestic partner of the other party. "Domestic partner" shall 2 not include a person who is related to the other person by blood in a 3 manner that would bar marriage to the other person in New York state. 4 "Domestic partner" shall also not include any person who is less than 5 eighteen years of age or who is the adopted child of the other person or 6 who is related by blood in a manner that would bar marriage in New York 7 state to a person who is the lawful spouse of the other person. 8 11. "Anatomical gift" or "gift" means a donation of all or part of a 9 human body to take effect after the donor's death for the purpose of 10 transplantation, therapy, research, or education. 11 12. "Document of gift" means an organ donor card, driver's license 12 authorization to make an anatomical gift, pursuant to paragraph (a) of 13 subdivision one of section five hundred four of the vehicle and traffic 14 law, authorization to make an anatomical gift pursuant to any of the 15 methods in subdivision five of section forty-three hundred ten of this 16 article, or any other written authorization for organ or tissue 17 donation. The term includes a statement or symbol on a driver's license, 18 identification card, or enrollment in a donor registry. 19 13. "Donee" means an individual or entity authorized to accept an 20 anatomical gift pursuant to forty-three hundred two of this article. 21 14. "Guardian" means a person appointed by a court to make decisions 22 regarding the support, care, education, health, or welfare of an indi- 23 vidual. The term does not include a guardian ad litem. 24 15. "Organ procurement organization" means a person designated by the 25 Secretary of the United States Department of Health and Human Services 26 as an organ procurement organization. 27 16. "Parent" means a parent whose parental rights have not been termi- 28 nated. 29 17. "Disinterested witness" means a witness other than the spouse, 30 child, parent, sibling, grandchild, grandparent, or guardian of the 31 individual who makes, amends, revokes, or refuses to make an anatomical 32 gift, or another adult who exhibited special care and concern for the 33 individual. 34 18. "Record" means information that is inscribed on a tangible medium 35 or that is stored in an electronic or other medium and is retrievable in 36 perceivable form. 37 19. "Procurement organization" means an eye bank, organ procurement 38 organization, or tissue bank. 39 20. "Eye bank" means a person that is licensed, accredited, or regu- 40 lated under federal or state law to engage in the recovery, screening, 41 testing, processing, storage, or distribution of human eyes or portions 42 of human eyes. 43 21. "Tissue bank" means a person that is licensed, accredited, or 44 regulated under federal or state law to solicit, retrieve, perform donor 45 selection and/or testing, preserve, transport, allocate, distribute, 46 acquire, process, store or arrange for the storage of human tissues for 47 transplantation, transfer, therapy, artificial insemination or implanta- 48 tion, including autogeneic procedures. 49 § 2. Subdivision 5 of section 4303 of the public health law is 50 REPEALED. 51 § 3. This act shall take effect immediately. 52 PART B 53 Changes in anatomical gift consentS. 1342--A 4 1 Section 1. Section 4301 of the public health law, as amended by chap- 2 ter 348 of the laws of 2009, subdivision 1 as amended by chapter 248 of 3 the laws of 2016, is amended to read as follows: 4 § 4301. Persons who may execute an anatomical gift. 1. (a) Any indi- 5 vidual of sound mind and eighteen years of age or more may [give all or6any part of his or her body] make an anatomical gift to take effect upon 7 their death for any purpose specified in section forty-three hundred two 8 of this article, [the gift to take effect upon death] limit an anatom- 9 ical gift to one or more of those purposes, or refuse to make an anatom- 10 ical gift. In any case where the donor has a properly executed [an11organ donor card, driver's license authorization to make an anatomical12gift, pursuant to paragraph (a) of subdivision one of section five13hundred four of the vehicle and traffic law, registered in the New York14state organ and tissue donor registry under section forty-three hundred15ten of this article, or has otherwise given written authorization for16organ or tissue donation,] document of gift, authorization for donation 17 shall not be rescinded [by an objection by a member of any of the class-18es specified in paragraphs (a) through (h) of subdivision two of this19section,] or amended by any other person except upon a showing that the 20 donor revoked the authorization pursuant to section forty-three hundred 21 five of this article. 22 (b) Any person who is sixteen or seventeen years of age and of sound 23 mind may [give all or any part of his or her body] make an anatomical 24 gift to take effect upon their death for any purpose specified in 25 section forty-three hundred two of this article, [the gift to take26effect upon death] limit an anatomical gift to one or more of those 27 purposes, or refuse to make an anatomical gift. In any case where the 28 donor has a properly executed [an organ donor card, driver's license29authorization to make an anatomical gift, pursuant to paragraph (a) of30subdivision one of section five hundred four of the vehicle and traffic31law, or has otherwise given written authorization for organ or tissue32donation] document of gift, notice of such gift shall be provided to the 33 donor's parents or [legal] guardians, and authorization for donation may 34 be rescinded or amended by an objection by a parent or [legal] guardian 35 of the donor at the time of death and prior to the recovery of any organ 36 or tissue if the donor is less than eighteen years of age. An anatomical 37 gift made by an individual more than sixteen years of age but less than 38 eighteen shall otherwise not be rescinded, except upon a showing that 39 the donor revoked the authorization pursuant to section forty-three 40 hundred five of this article. Upon the donor reaching the age of eigh- 41 teen, the donor's consent to donate his or her organs or tissue shall be 42 regarded as consent for authorization to make an anatomical gift pursu- 43 ant to paragraph (a) of this subdivision. 44 (c) In the absence of an express, contrary indication by the donor, an 45 anatomical gift of a part is neither a refusal to give other parts nor a 46 limitation on an individual's ability to make an anatomical gift under 47 subdivision two of section forty-three hundred one of this article. 48 2. [Any of the following persons, in the order of priority stated,49may, when persons in prior classes are not reasonably available, will-50ing, and able to act, at the time of death, and in the absence of actual51notice of contrary indications by the decedent, or actual notice of52opposition by a member of the same class or prior class specified in53paragraph (a), (b), (c), (d), (e), (f), (g) or (h) of this subdivision,54or reason to believe that] (a) In the absence of a gift made by the 55 donor under subdivision one of this section, and in the absence of actu- 56 al notice of contrary indications by the decedent, including religiousS. 1342--A 5 1 or moral objections, an anatomical gift [is contrary to the decedent's2religious or moral beliefs, give all or any part] of the decedent's body 3 may be made by any member of the following classes of persons who is 4 reasonably available, in the order of priority listed, for any purpose 5 specified in section forty-three hundred two of this article: 6 [(a)] (i) the person designated as the decedent's health care agent 7 under article twenty-nine-C of this chapter, subject to any written 8 statement in the health care proxy form, 9 [(b)] (ii) the person designated as the decedent's agent in a written 10 instrument under article forty-two of this chapter, subject to any writ- 11 ten statement in the written instrument, 12 [(c)] (iii) the spouse, if not legally separated from the patient, or 13 the domestic partner, 14 [(d)] (iv) a son or daughter eighteen years of age or older, 15 [(e)] (v) either parent, 16 [(f)] (vi) a brother or sister eighteen years of age or older, 17 [(g)] (vii) adult grandchildren of the decedent, 18 (viii) a grandparent of the decedent, 19 (ix) an adult who exhibited special care and concern for the decedent, 20 (x) a guardian of the person of the decedent at the time of his death, 21 or 22 [(h)] (xi) any other person authorized or under the obligation to 23 dispose of the body. 24 (b) If there is more than one member of a class listed in subparagraph 25 (iv), (vi), (vii) or (viii) of paragraph (a) of this subdivision enti- 26 tled to make an anatomical gift, an anatomical gift may be made by a 27 member of the class unless that member or a person knows of an objection 28 by another member of the class. If an objection is known, the gift may 29 be made only by a majority of the members of the class who are reason- 30 ably available. 31 3. [For the purposes of this section, "reasonably available" means32that a person to be contacted can be contacted without undue effort and33willing and able to act in a timely manner consistent with existing34medical criteria necessary for the making of an anatomical gift.354. For the purposes of this section, "domestic partner" means a person36who, with respect to another person:37(a) is formally a party in a domestic partnership or similar relation-38ship with the other person, entered into pursuant to the laws of the39United States or any state, local or foreign jurisdiction, or registered40as the domestic partner of the person with any registry maintained by41the employer of either party or any state, municipality, or foreign42jurisdiction; or43(b) is formally recognized as a beneficiary or covered person under44the other person's employment benefits or health insurance; or45(c) is dependent or mutually interdependent on the other person for46support, as evidenced by the totality of the circumstances indicating a47mutual intent to be domestic partners including but not limited to:48common ownership or joint leasing of real or personal property; common49householding, shared income or shared expenses; children in common;50signs of intent to marry or become domestic partners under paragraph (a)51or (b) of this subdivision; or the length of the personal relationship52of the persons.53Each party to a domestic partnership shall be considered to be the54domestic partner of the other party. "Domestic partner" shall not55include a person who is related to the other person by blood in a manner56that would bar marriage to the other person in New York state. "DomesticS. 1342--A 6 1partner" shall also not include any person who is less than eighteen2years of age or who is the adopted child of the other person or who is3related by blood in a manner that would bar marriage in New York state4to a person who is the lawful spouse of the other person.] An anatomical 5 gift may not be made by a person listed in subdivision two of this 6 section if: 7 (a) a person in a prior class is reasonably available; 8 (b) the person proposing to make an anatomical gift knows of a refusal 9 or contrary indications by the decedent, including that an anatomical 10 gift is contrary to the decedent's religious or moral beliefs; or 11 (c) the person proposing to make an anatomical gift knows of an 12 objection to making an anatomical gift by a member of the person's class 13 or a prior class. 14 4. Any gift by a person designated in subdivision two of this section 15 shall be by a document signed by him or her or made by his or her tele- 16 graphic, recorded telephonic, or other recorded message. Where a gift is 17 made under this subdivision, either: (a) the donor shall indicate in the 18 document or message that he or she has no actual notice of contrary 19 indications by the decedent and no reason to believe that an anatomical 20 gift is contrary to the decedent's religious or moral beliefs; or (b) an 21 agent of the federally designated organ procurement organization or of 22 the donee shall make reasonable effort to inquire of the donor or other- 23 wise determine that the donor has no actual notice of contrary indi- 24 cations by the decedent and no reason to believe that an anatomical gift 25 is contrary to the decedent's religious or moral beliefs. 26 5. The donee shall not accept the gift under the following circum- 27 stances: 28 (a) the donee has actual notice of contrary indication by the dece- 29 dent; 30 (b) where [the donor has not properly executed an organ donor card,31driver's license authorization to make] an anatomical gift[, pursuant to32paragraph (a) of subdivision one of section five hundred four of the33vehicle and traffic law, registered in the New York state organ and34tissue donor registry under section forty-three hundred ten of this35article, or otherwise given written authorization for organ or tissue36donation, or has revoked any such authorization, and the gift is opposed37by a person or persons in the highest priority available of the classes38specified in paragraph (a), (b), (c), (d), (e), (f), (g) or (h) of39subdivision two of] is not properly made pursuant to this section; or 40 (c) the donee has reason to believe that an anatomical gift is contra- 41 ry to the decedent's religious or moral beliefs. 42 6. A gift of all or part of a body authorizes any examination neces- 43 sary to assure medical acceptability of gift for the purposes intended. 44 7. The rights of the donee created by the gift are paramount to the 45 rights of others except as provided by section forty-three hundred eight 46 of this article. 47 8. The person who documents the making, amending or revoking of an 48 anatomical gift, acting reasonably and in good faith in accordance with 49 this article, may accept an anatomical gift under this article made by a 50 person who represents that he or she is entitled to consent to the 51 donation. 52 § 2. This act shall take effect on the one hundred eightieth day after 53 it shall have become a law; provided, however, that effective immediate- 54 ly, the commissioner of health shall make regulations and take other 55 actions reasonably necessary to implement this act on that date.S. 1342--A 7 1 PART C 2 Changes in anatomical gift revocation and amendment 3 Section 1. Section 4305 of the public health law, as added by chapter 4 466 of the laws of 1970, is amended to read as follows: 5 § 4305. [Revocation] Amendments or revocation of the gift. 1. [If the6will, card, or other document or executed copy thereof has been deliv-7ered to a specified donee, the donor] An individual who has created a 8 document of gift may amend or revoke the gift by: 9 (a) [the execution and delivery to the donee of a signed statement] a 10 record signed by the donor, or 11 (b) an oral statement of revocation made in the presence of two 12 persons, [communicated to the donee] at least one of whom is a disinter- 13 ested witness, or 14 (c) a later-executed document of gift that expressly amends or revokes 15 a previous anatomical gift or portion of an anatomical gift, or 16 (d) a statement during a terminal illness or injury addressed to an 17 attending physician and communicated to the donee, or 18 [(d)] (e) a signed card or document, found on his or her person or in 19 his or her effects. 20 2. (a) Subject to paragraphs (b) and (c) of this subdivision, an indi- 21 vidual authorized to make an anatomical gift pursuant to subdivision two 22 of section forty-three hundred one of this article shall revoke or amend 23 such gift by: 24 (i) a record signed by the donor, or 25 (ii) an oral statement of revocation made in the presence of two 26 persons, at least one of whom is a disinterested witness, or 27 (iii) a later-executed document of gift that expressly amends or 28 revokes a previous anatomical gift or portion of an anatomical gift. 29 (b) If more than one member of a class listed in subparagraph (iv), 30 (vi), (vii) or (viii) of paragraph (a) of subdivision two of section 31 forty-three hundred one of this article is reasonably available, a gift 32 made pursuant to subdivision two of section forty-three hundred one of 33 this article may be amended only if a majority of the reasonably avail- 34 able members agree to the amending of the gift, or revoked only if a 35 majority of the reasonably available members agree to the revoking of 36 the gift or if they are equally divided as to whether to revoke the 37 gift. 38 (c) A revocation is effective only if, before an incision has been 39 made to remove a part from the donor's body or before invasive proce- 40 dures have begun to prepare the recipient, the procurement organization, 41 transplant hospital, or physician or technician knows of the revocation. 42 3. Any document of gift[which has not been delivered to the donee] 43 may be revoked in the manner set out in subdivision one or two of this 44 section or by destruction, cancellation, or mutilation of the document 45 and all executed copies thereof. 46 [3.] 4. Any gift made by a will may be revoked or amended in the 47 manner provided for revocation or amendment of wills or as provided in 48 subdivision one of this section. 49 5. In the absence of contrary indications by the donor, a revocation 50 or amendment of an anatomical gift is not a refusal to make another 51 anatomical gift, either by the donor or another person specified in 52 subdivision two of section forty-three hundred one of this article. 53 § 2. This act shall take effect on the one hundred eightieth day after 54 it shall have become a law; provided, however, that effective immediate-S. 1342--A 8 1 ly, the commissioner of health shall make regulations and take other 2 actions reasonably necessary to implement this act on that date. 3 § 3. Severability. If any provision of this act, or any application of 4 any provision of this act, is held to be invalid, or to violate or be 5 inconsistent with any federal law or regulation, that shall not affect 6 the validity or effectiveness of any other provision of this act, or of 7 any other application of any provision of this act, which can be given 8 effect without that provision or application; and to that end, the 9 provisions and applications of this act are severable. 10 § 4. This act shall take effect immediately; provided, however, that 11 the applicable effective dates of Parts A through C of this act shall be 12 as specifically set forth in the last sections of such Parts.
