Bill Text: NY S01342 | 2019-2020 | General Assembly | Amended
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--B Cal. No. 1123 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 -- committee discharged and said bill committed to the Committee on Rules -- reported favorably from said committee, ordered to a third reading, passed by Senate and delivered to the Assembly, recalled, vote reconsidered, restored to third reading, amended and ordered reprinted, retaining its place in the order of third reading 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 EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD03867-10-9S. 1342--B 2 1 provision in any section contained within a Part, including the effec- 2 tive date of the Part, which makes a reference to a section "of this 3 act," when used in connection with that particular component, shall be 4 deemed to mean and refer to the corresponding section of the Part in 5 which it is found. Section four of this act sets forth the general 6 effective date of this act. 7 PART A 8 Definitions and conforming changes 9 Section 1. Section 4300 of the public health law, as added by chapter 10 466 of the laws of 1970, is amended to read as follows: 11 § 4300. Definitions. As used in this section, the following terms 12 shall have the following meanings: 13 1. "Bank or storage facility" or "bank" means a hospital, laboratory 14 or other facility licensed or approved under the laws of any state for 15 storage of human bodies or parts thereof, for use in medical education, 16 research, therapy, or transplantation [to individuals]. 17 2. "Decedent" means a deceased individual of any age whose body or 18 part is or may be the source of an anatomical gift and includes a still- 19 born infant or fetus. 20 3. "Donor" means an individual [who makes a gift of all or part of21his] whose body or part is the subject of an anatomical gift. 22 4. "Hospital" means a hospital licensed, accredited, or approved under 23 the laws of any state and includes a hospital operated by the United 24 States Government, a state, or a subdivision thereof, although not 25 required to be licensed under state laws. 26 5. "Part" of a body includes organs, tissues, eyes, bones, arteries, 27 blood, other fluids [and] or other portions of a human body, and "part" 28 includes "parts". 29 6. "Person" means an individual, corporation, government or govern- 30 mental subdivision or agency, business trust, estate, trust, partnership 31 or association, or any other legal entity. 32 7. "Physician" or "surgeon" means a physician or surgeon licensed or 33 authorized to practice under the laws of any state. 34 8. "State" includes any state, district, commonwealth, territory, 35 insular possession, and any other area subject to the legislative 36 authority of the United States of America. 37 9. "Reasonably available" means able to be contacted by a procurement 38 organization without undue effort and willing and able to act in a time- 39 ly manner consistent with existing medical criteria necessary for the 40 making of an anatomical gift. 41 10. "Domestic partner" means a person who, with respect to another 42 person: 43 (a) is formally a party in a domestic partnership or similar relation- 44 ship with the other person, entered into pursuant to the laws of the 45 United States or any state, local or foreign jurisdiction, or registered 46 as the domestic partner of the person with any registry maintained by 47 the employer of either party or any state, municipality, or foreign 48 jurisdiction; or 49 (b) is formally recognized as a beneficiary or covered person under 50 the other person's employment benefits or health insurance; or 51 (c) is dependent or mutually interdependent on the other person for 52 support, as evidenced by the totality of the circumstances indicating a 53 mutual intent to be domestic partners including but not limited to: 54 common ownership or joint leasing of real or personal property; commonS. 1342--B 3 1 householding, shared income or shared expenses; children in common; 2 signs of intent to marry or become domestic partners under paragraph (a) 3 or (b) of this subdivision; or the length of the personal relationship 4 of the persons. Each party to a domestic partnership shall be considered 5 to be the domestic partner of the other party. "Domestic partner" shall 6 not include a person who is related to the other person by blood in a 7 manner that would bar marriage to the other person in New York state. 8 "Domestic partner" shall also not include any person who is less than 9 eighteen years of age or who is the adopted child of the other person or 10 who is related by blood in a manner that would bar marriage in New York 11 state to a person who is the lawful spouse of the other person. 12 11. "Anatomical gift" or "gift" means a donation of all or part of a 13 human body to take effect after the donor's death for the purpose of 14 transplantation, therapy, research, or education. 15 12. "Document of gift" means an organ donor card, driver's license 16 authorization to make an anatomical gift, pursuant to paragraph (a) of 17 subdivision one of section five hundred four of the vehicle and traffic 18 law, authorization to make an anatomical gift pursuant to any of the 19 methods in subdivision five of section forty-three hundred ten of this 20 article, or any other written authorization for organ or tissue 21 donation. The term includes a statement or symbol on a driver's license, 22 identification card, or enrollment in a donor registry. 23 13. "Donee" means an individual or entity authorized to accept an 24 anatomical gift pursuant to forty-three hundred two of this article. 25 14. "Guardian" means a person appointed by a court to make decisions 26 regarding the support, care, education, health, or welfare of an indi- 27 vidual. The term does not include a guardian ad litem. 28 15. "Organ procurement organization" means a person designated by the 29 Secretary of the United States Department of Health and Human Services 30 as an organ procurement organization. 31 16. "Parent" means a parent whose parental rights have not been termi- 32 nated. 33 17. "Disinterested witness" means a witness other than the spouse, 34 child, parent, sibling, grandchild, grandparent, domestic partner, or 35 guardian of the individual who makes, amends, revokes, or refuses to 36 make an anatomical gift, or another adult who exhibited special care and 37 concern for the individual. 38 18. "Close friend" means any person, eighteen years of age or older, 39 who is a close friend of the patient, or a relative of the patient other 40 than a spouse, adult child, parent, brother, or sister, who has main- 41 tained regular contact with the patient as to be familiar with the 42 patient's activities, health, and religious or moral beliefs. 43 19. "Refusal" means a record created under section forty-three hundred 44 five of this article that expressly states an intent to bar other 45 persons from making an anatomical gift. 46 20. "Record" means information that is inscribed on a tangible medium 47 or that is stored in an electronic or other medium and is retrievable in 48 perceivable form. 49 21. "Procurement organization" means an eye bank, organ procurement 50 organization, or tissue bank. 51 22. "Eye bank" means a person that is licensed, accredited, or regu- 52 lated under federal or state law to engage in the recovery, screening, 53 testing, processing, storage, or distribution of human eyes or portions 54 of human eyes. 55 23. "Tissue bank" means a person that is licensed, accredited, or 56 regulated under federal or state law to solicit, retrieve, perform donorS. 1342--B 4 1 selection and/or testing, preserve, transport, allocate, distribute, 2 acquire, process, store or arrange for the storage of human tissues for 3 transplantation, transfer, therapy, artificial insemination or implanta- 4 tion, including autogeneic procedures. 5 § 2. Subdivision 5 of section 4303 of the public health law is 6 REPEALED. 7 § 3. This act shall take effect immediately. 8 PART B 9 Changes in anatomical gift consent 10 Section 1. Section 4301 of the public health law, as amended by chap- 11 ter 348 of the laws of 2009, subdivision 1 as amended by chapter 248 of 12 the laws of 2016, is amended to read as follows: 13 § 4301. Persons who may execute an anatomical gift. 1. (a) Any indi- 14 vidual of sound mind and eighteen years of age or more may [give all or15any part of his or her body] make an anatomical gift to take effect upon 16 their death for any purpose specified in section forty-three hundred two 17 of this article, [the gift to take effect upon death] limit an anatom- 18 ical gift to one or more of those purposes, or refuse to make an anatom- 19 ical gift. In any case where the donor has a properly executed [an20organ donor card, driver's license authorization to make an anatomical21gift, pursuant to paragraph (a) of subdivision one of section five22hundred four of the vehicle and traffic law, registered in the New York23state organ and tissue donor registry under section forty-three hundred24ten of this article, or has otherwise given written authorization for25organ or tissue donation,] document of gift, authorization for donation 26 shall not be rescinded [by an objection by a member of any of the class-27es specified in paragraphs (a) through (h) of subdivision two of this28section,] or amended by any other person except upon a showing that the 29 donor revoked the authorization pursuant to section forty-three hundred 30 five of this article. 31 (b) Any person who is sixteen or seventeen years of age and of sound 32 mind may [give all or any part of his or her body] make an anatomical 33 gift to take effect upon their death for any purpose specified in 34 section forty-three hundred two of this article, [the gift to take35effect upon death] limit an anatomical gift to one or more of those 36 purposes, or refuse to make an anatomical gift. In any case where the 37 donor has a properly executed [an organ donor card, driver's license38authorization to make an anatomical gift, pursuant to paragraph (a) of39subdivision one of section five hundred four of the vehicle and traffic40law, or has otherwise given written authorization for organ or tissue41donation] document of gift, notice of such gift shall be provided to the 42 donor's parents or [legal] guardians, and authorization for donation may 43 be rescinded or amended by an objection by a parent or [legal] guardian 44 of the donor at the time of death and prior to the recovery of any organ 45 or tissue if the donor is less than eighteen years of age. An anatomical 46 gift made by an individual more than sixteen years of age but less than 47 eighteen shall otherwise not be rescinded, except upon a showing that 48 the donor revoked the authorization pursuant to section forty-three 49 hundred five of this article. Upon the donor reaching the age of eigh- 50 teen, the donor's consent to donate his or her organs or tissue shall be 51 regarded as consent for authorization to make an anatomical gift pursu- 52 ant to paragraph (a) of this subdivision. 53 (c) In the absence of an express, contrary indication by the donor, an 54 anatomical gift of a part is neither a refusal to give other parts nor aS. 1342--B 5 1 limitation on an individual's ability to make an anatomical gift under 2 subdivision two of section forty-three hundred one of this article. 3 2. [Any of the following persons, in the order of priority stated,4may, when persons in prior classes are not reasonably available, will-5ing, and able to act, at the time of death, and in the absence of actual6notice of contrary indications by the decedent, or actual notice of7opposition by a member of the same class or prior class specified in8paragraph (a), (b), (c), (d), (e), (f), (g) or (h) of this subdivision,9or reason to believe that] (a) In the absence of a gift made by the 10 donor under subdivision one of this section, and in the absence of actu- 11 al notice of contrary indications by the decedent, including religious 12 or moral objections, an anatomical gift [is contrary to the decedent's13religious or moral beliefs, give all or any part] of the decedent's body 14 may be made by any member of the following classes of persons who is 15 reasonably available, in the order of priority listed, for any purpose 16 specified in section forty-three hundred two of this article: 17 [(a)] (i) the person designated as the decedent's health care agent 18 under article twenty-nine-C of this chapter, subject to any written 19 statement in the health care proxy form, 20 [(b)] (ii) the person designated as the decedent's agent in a written 21 instrument under article forty-two of this chapter, subject to any writ- 22 ten statement in the written instrument, 23 [(c)] (iii) the spouse, if not legally separated from the patient, or 24 the domestic partner, 25 [(d)] (iv) a son or daughter eighteen years of age or older, 26 [(e)] (v) either parent, 27 [(f)] (vi) a brother or sister eighteen years of age or older, 28 [(g)] (vii) adult grandchildren of the decedent, 29 (viii) a grandparent of the decedent, 30 (ix) a guardian of the person of the decedent at the time of his 31 death, or 32 [(h)] (x) any other person authorized or under the obligation to 33 dispose of the body. 34 (b) If there is more than one member of a class listed in subparagraph 35 (iv), (vi), (vii) or (viii) of paragraph (a) of this subdivision enti- 36 tled to make an anatomical gift, an anatomical gift may be made by a 37 member of the class unless that member or a person knows of an objection 38 by another member of the class. If an objection is known, the gift may 39 be made only by a majority of the members of the class who are reason- 40 ably available. 41 3. [For the purposes of this section, "reasonably available" means42that a person to be contacted can be contacted without undue effort and43willing and able to act in a timely manner consistent with existing44medical criteria necessary for the making of an anatomical gift.454. For the purposes of this section, "domestic partner" means a person46who, with respect to another person:47(a) is formally a party in a domestic partnership or similar relation-48ship with the other person, entered into pursuant to the laws of the49United States or any state, local or foreign jurisdiction, or registered50as the domestic partner of the person with any registry maintained by51the employer of either party or any state, municipality, or foreign52jurisdiction; or53(b) is formally recognized as a beneficiary or covered person under54the other person's employment benefits or health insurance; or55(c) is dependent or mutually interdependent on the other person for56support, as evidenced by the totality of the circumstances indicating aS. 1342--B 6 1mutual intent to be domestic partners including but not limited to:2common ownership or joint leasing of real or personal property; common3householding, shared income or shared expenses; children in common;4signs of intent to marry or become domestic partners under paragraph (a)5or (b) of this subdivision; or the length of the personal relationship6of the persons.7Each party to a domestic partnership shall be considered to be the8domestic partner of the other party. "Domestic partner" shall not9include a person who is related to the other person by blood in a manner10that would bar marriage to the other person in New York state. "Domestic11partner" shall also not include any person who is less than eighteen12years of age or who is the adopted child of the other person or who is13related by blood in a manner that would bar marriage in New York state14to a person who is the lawful spouse of the other person.] An anatomical 15 gift may not be made by a person listed in subdivision two of this 16 section if: 17 (a) a person in a prior class is reasonably available; or 18 (b) the person proposing to make an anatomical gift knows of a refusal 19 or contrary indications by the decedent, including that an anatomical 20 gift is contrary to the decedent's religious or moral beliefs. 21 4. Any gift by a person designated in subdivision two of this section 22 shall be by a document signed by him or her or made by his or her tele- 23 graphic, recorded telephonic, or other recorded message. Where a gift is 24 made under this subdivision, either: (a) the donor shall indicate in the 25 document or message that he or she has no actual notice of contrary 26 indications by the decedent and no reason to believe that an anatomical 27 gift is contrary to the decedent's religious or moral beliefs; or (b) an 28 agent of the federally designated organ procurement organization or of 29 the donee shall make reasonable effort to inquire of the donor or other- 30 wise determine that the donor has no actual notice of contrary indi- 31 cations by the decedent and no reason to believe that an anatomical gift 32 is contrary to the decedent's religious or moral beliefs. 33 5. The donee shall not accept the gift under the following circum- 34 stances: 35 (a) the donee has actual notice of contrary indication by the dece- 36 dent; 37 (b) where [the donor has not properly executed an organ donor card,38driver's license authorization to make] an anatomical gift[, pursuant to39paragraph (a) of subdivision one of section five hundred four of the40vehicle and traffic law, registered in the New York state organ and41tissue donor registry under section forty-three hundred ten of this42article, or otherwise given written authorization for organ or tissue43donation, or has revoked any such authorization, and the gift is opposed44by a person or persons in the highest priority available of the classes45specified in paragraph (a), (b), (c), (d), (e), (f), (g) or (h) of46subdivision two of] is not properly made pursuant to this section; or 47 (c) the donee has reason to believe that an anatomical gift is contra- 48 ry to the decedent's religious or moral beliefs. 49 6. A gift of all or part of a body authorizes any examination neces- 50 sary to assure medical acceptability of gift for the purposes intended. 51 7. The rights of the donee created by the gift are paramount to the 52 rights of others except as provided by section forty-three hundred eight 53 of this article. 54 8. The person who documents the making, amending or revoking of an 55 anatomical gift, acting reasonably and in good faith in accordance with 56 this article, may accept an anatomical gift under this article made by aS. 1342--B 7 1 person who represents that he or she is entitled to consent to the 2 donation. 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 PART C 8 Changes in anatomical gift revocation and amendment 9 Section 1. Section 4305 of the public health law, as added by chapter 10 466 of the laws of 1970, is amended to read as follows: 11 § 4305. [Revocation] Amendments or revocation of the gift. 1. [If the12will, card, or other document or executed copy thereof has been deliv-13ered to a specified donee, the donor] An individual who has created a 14 document of gift may amend or revoke the gift by: 15 (a) [the execution and delivery to the donee of a signed statement] a 16 record signed by the donor, or 17 (b) an oral statement of revocation made in the presence of two 18 persons, [communicated to the donee] at least one of whom is a disinter- 19 ested witness, or 20 (c) a later-executed document of gift that expressly amends or revokes 21 a previous anatomical gift or portion of an anatomical gift, or 22 (d) a statement during a terminal illness or injury addressed to an 23 attending physician and communicated to the donee, or 24 [(d)] (e) a signed card or document, found on his or her person or in 25 his or her effects. 26 2. (a) Subject to paragraphs (b) and (c) of this subdivision, an indi- 27 vidual authorized to make an anatomical gift pursuant to subdivision two 28 of section forty-three hundred one of this article shall revoke or amend 29 such gift by: 30 (i) a record signed by the donor, or 31 (ii) an oral statement of revocation made in the presence of two 32 persons, at least one of whom is a disinterested witness, or 33 (iii) a later-executed document of gift that expressly amends or 34 revokes a previous anatomical gift or portion of an anatomical gift. 35 (b) If more than one member of a class listed in subparagraph (iv), 36 (vi), (vii) or (viii) of paragraph (a) of subdivision two of section 37 forty-three hundred one of this article is reasonably available, a gift 38 made pursuant to subdivision two of section forty-three hundred one of 39 this article may be amended only if a majority of the reasonably avail- 40 able members agree to the amending of the gift, or revoked only if a 41 majority of the reasonably available members agree to the revoking of 42 the gift or if they are equally divided as to whether to revoke the 43 gift. 44 (c) A revocation is effective only if, before an incision has been 45 made to remove a part from the donor's body or before invasive proce- 46 dures have begun to prepare the recipient, the procurement organization, 47 transplant hospital, or physician or technician knows of the revocation. 48 3. Any document of gift[which has not been delivered to the donee] 49 may be revoked in the manner set out in subdivision one or two of this 50 section or by destruction, cancellation, or mutilation of the document 51 and all executed copies thereof. 52 [3.] 4. Any gift made by a will may be revoked or amended in the 53 manner provided for revocation or amendment of wills or as provided in 54 subdivision one of this section.S. 1342--B 8 1 5. In the absence of contrary indications by the donor, a revocation 2 or amendment of an anatomical gift is not a refusal to make another 3 anatomical gift, either by the donor or another person specified in 4 subdivision two of section forty-three hundred one of this article. 5 § 2. This act shall take effect on the one hundred eightieth day after 6 it shall have become a law; provided, however, that effective immediate- 7 ly, the commissioner of health shall make regulations and take other 8 actions reasonably necessary to implement this act on that date. 9 § 3. Severability. If any provision of this act, or any application of 10 any provision of this act, is held to be invalid, or to violate or be 11 inconsistent with any federal law or regulation, that shall not affect 12 the validity or effectiveness of any other provision of this act, or of 13 any other application of any provision of this act, which can be given 14 effect without that provision or application; and to that end, the 15 provisions and applications of this act are severable. 16 § 4. This act shall take effect immediately; provided, however, that 17 the applicable effective dates of Parts A through C of this act shall be 18 as specifically set forth in the last sections of such Parts.
