Bill Text: NY S08998 | 2017-2018 | General Assembly | Introduced

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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 (Republican 1-0)

Status: (Introduced - Dead) 2018-06-12 - REFERRED TO RULES [S08998 Detail]

Download: New_York-2017-S08998-Introduced.html

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                STATE OF NEW YORK
        ________________________________________________________________________
                                          8998
                    IN SENATE
                                      June 12, 2018
                                       ___________
        Introduced  by  Sen.  HANNON -- read twice and ordered printed, and when
          printed to be committed to the Committee on Rules
        AN ACT to amend the public health law, in relation  to  definitions  and
          conforming  changes  pertaining  to  anatomical  gifts;  and to 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
    19  which  it  is  found.  Section  three of this act sets forth the general
    20  effective date of this act.
    21                                   PART A
    22                     Definitions and conforming changes
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD15950-01-8
        S. 8998                             2
     1    Section 1. Section 4300 of the public health law, as added by  chapter
     2  466 of the laws of 1970, is amended to read as follows:
     3    §  4300.  Definitions.  As  used  in this section, the following terms
     4  shall have the following meanings:
     5    1. "Bank or storage facility" or "bank" means a  hospital,  laboratory
     6  or  other  facility licensed or approved under the laws of any state for
     7  storage of human bodies or parts thereof, for use in medical  education,
     8  research, therapy, or transplantation [to individuals].
     9    2.  "Decedent"  means  a  deceased individual of any age whose body or
    10  part is or may be the source of an anatomical gift and includes a still-
    11  born infant or fetus.
    12    3. "Donor" means an individual [who makes a gift of  all  or  part  of
    13  his] whose body or part is the subject of an anatomical gift.
    14    4. "Hospital" means a hospital licensed, accredited, or approved under
    15  the  laws  of  any  state and includes a hospital operated by the United
    16  States Government, a state,  or  a  subdivision  thereof,  although  not
    17  required to be licensed under state laws.
    18    5.  "Part"  of a body includes organs, tissues, eyes, bones, arteries,
    19  blood, other fluids [and] or other portions of a human body, and  "part"
    20  includes "parts".
    21    6.  "Person"  means  an individual, corporation, government or govern-
    22  mental subdivision or agency, business trust, estate, trust, partnership
    23  or association, or any other legal entity.
    24    7. "Physician" or "surgeon" means a physician or surgeon  licensed  or
    25  authorized to practice under the laws of any state.
    26    8.  "State"  includes  any  state,  district, commonwealth, territory,
    27  insular possession, and  any  other  area  subject  to  the  legislative
    28  authority of the United States of America.
    29    9.  "Reasonably available" means able to be contacted by a procurement
    30  organization without undue effort and willing and able to act in a time-
    31  ly manner consistent with existing medical criteria  necessary  for  the
    32  making of an anatomical gift.
    33    10.  "Domestic  partner"  means  a person who, with respect to another
    34  person:
    35    (a) is formally a party in a domestic partnership or similar relation-
    36  ship with the other person, entered into pursuant to  the  laws  of  the
    37  United States or any state, local or foreign jurisdiction, or registered
    38  as  the  domestic  partner of the person with any registry maintained by
    39  the employer of either party or  any  state,  municipality,  or  foreign
    40  jurisdiction; or
    41    (b)  is  formally  recognized as a beneficiary or covered person under
    42  the other person's employment benefits or health insurance; or
    43    (c) is dependent or mutually interdependent on the  other  person  for
    44  support,  as evidenced by the totality of the circumstances indicating a
    45  mutual intent to be domestic partners  including  but  not  limited  to:
    46  common  ownership  or joint leasing of real or personal property; common
    47  householding, shared income or  shared  expenses;  children  in  common;
    48  signs of intent to marry or become domestic partners under paragraph (a)
    49  or  (b)  of this subdivision; or the length of the personal relationship
    50  of the persons. Each party to a domestic partnership shall be considered
    51  to be the domestic partner of the other party.  "Domestic partner" shall
    52  not include a person who is related to the other person by  blood  in  a
    53  manner  that  would  bar marriage to the other person in New York state.
    54  "Domestic partner" shall also not include any person who  is  less  than
    55  eighteen years of age or who is the adopted child of the other person or
        S. 8998                             3
     1  who  is related by blood in a manner that would bar marriage in New York
     2  state to a person who is the lawful spouse of the other person.
     3    11.  "Anatomical  gift" or "gift" means a donation of all or part of a
     4  human body to take effect after the donor's death  for  the  purpose  of
     5  transplantation, therapy, research, or education.
     6    12.  "Document  of  gift"  means an organ donor card, driver's license
     7  authorization to make an anatomical gift, pursuant to paragraph  (a)  of
     8  subdivision  one of section five hundred four of the vehicle and traffic
     9  law, authorization to make an anatomical gift pursuant  to  any  of  the
    10  methods  in  subdivision five of section forty-three hundred ten of this
    11  article,  or  any  other  written  authorization  for  organ  or  tissue
    12  donation. The term includes a statement or symbol on a driver's license,
    13  identification card, or enrollment in a donor registry.
    14    13.  "Donee"  means  an  individual  or entity authorized to accept an
    15  anatomical gift pursuant to forty-three hundred two of this article.
    16    14. "Guardian" means a person appointed by a court to  make  decisions
    17  regarding  the  support, care, education, health, or welfare of an indi-
    18  vidual. The term does not include a guardian ad litem.
    19    15. "Organ procurement organization" means a person designated by  the
    20  Secretary  of  the United States Department of Health and Human Services
    21  as an organ procurement organization.
    22    16. "Parent" means a parent whose parental rights have not been termi-
    23  nated.
    24    17. "Disinterested witness" means a witness  other  than  the  spouse,
    25  child,  parent,  sibling,  grandchild,  grandparent,  or guardian of the
    26  individual who makes, amends, revokes, or refuses to make an  anatomical
    27  gift,  or  another  adult who exhibited special care and concern for the
    28  individual.
    29    18. "Record" means information that is inscribed on a tangible  medium
    30  or that is stored in an electronic or other medium and is retrievable in
    31  perceivable form.
    32    19.  "Procurement  organization"  means an eye bank, organ procurement
    33  organization, or tissue bank.
    34    20. "Eye bank" means a person that is licensed, accredited,  or  regu-
    35  lated  under  federal or state law to engage in the recovery, screening,
    36  testing, processing, storage, or distribution of human eyes or  portions
    37  of human eyes.
    38    21.  "Tissue  bank"  means  a  person that is licensed, accredited, or
    39  regulated under federal or state law to solicit, retrieve, perform donor
    40  selection and/or testing,  preserve,  transport,  allocate,  distribute,
    41  acquire,  process, store or arrange for the storage of human tissues for
    42  transplantation, transfer, therapy, artificial insemination or implanta-
    43  tion, including autogeneic procedures.
    44    § 2. Subdivision 5 of  section  4303  of  the  public  health  law  is
    45  REPEALED.
    46    § 3. This act shall take effect immediately.
    47                                   PART B
    48                     Changes in anatomical gift consent
    49    Section  1. Section 4301 of the public health law, as amended by chap-
    50  ter 348 of the laws of 2009, subdivision 1 as amended by chapter 248  of
    51  the laws of 2016, is amended to read as follows:
    52    §  4301. Persons who may execute an anatomical gift.  1. (a) Any indi-
    53  vidual of sound mind and eighteen years of age or more may [give all  or
    54  any part of his or her body] make an anatomical gift to take effect upon
        S. 8998                             4
     1  their death for any purpose specified in section forty-three hundred two
     2  of  this  article, [the gift to take effect upon death] limit an anatom-
     3  ical gift to one or more of those purposes, or refuse to make an anatom-
     4  ical  gift.    In  any  case where the donor has a properly executed [an
     5  organ donor card, driver's license authorization to make  an  anatomical
     6  gift,  pursuant  to  paragraph  (a)  of  subdivision one of section five
     7  hundred four of the vehicle and traffic law, registered in the New  York
     8  state  organ and tissue donor registry under section forty-three hundred
     9  ten of this article, or has otherwise given  written  authorization  for
    10  organ  or tissue donation,] document of gift, authorization for donation
    11  shall not be rescinded [by an objection by a member of any of the class-
    12  es specified in paragraphs (a) through (h) of subdivision  two  of  this
    13  section,]  or amended by any other person except upon a showing that the
    14  donor revoked the authorization pursuant to section forty-three  hundred
    15  five of this article.
    16    (b)  Any  person who is sixteen or seventeen years of age and of sound
    17  mind may [give all or any part of his or her body]  make  an  anatomical
    18  gift  to  take  effect  upon  their  death  for any purpose specified in
    19  section forty-three hundred two of  this  article,  [the  gift  to  take
    20  effect  upon  death]  limit  an  anatomical gift to one or more of those
    21  purposes, or refuse to make an anatomical gift.  In any case  where  the
    22  donor  has  a  properly  executed [an organ donor card, driver's license
    23  authorization to make an anatomical gift, pursuant to paragraph  (a)  of
    24  subdivision  one of section five hundred four of the vehicle and traffic
    25  law, or has otherwise given written authorization for  organ  or  tissue
    26  donation] document of gift, notice of such gift shall be provided to the
    27  donor's parents or [legal] guardians, and authorization for donation may
    28  be  rescinded or amended by an objection by a parent or [legal] guardian
    29  of the donor at the time of death and prior to the recovery of any organ
    30  or tissue if the donor is less than eighteen years of age. An anatomical
    31  gift made by an individual more than sixteen years of age but less  than
    32  eighteen  shall  otherwise  not be rescinded, except upon a showing that
    33  the donor revoked the  authorization  pursuant  to  section  forty-three
    34  hundred  five of this article.  Upon the donor reaching the age of eigh-
    35  teen, the donor's consent to donate his or her organs or tissue shall be
    36  regarded as consent for authorization to make an anatomical gift  pursu-
    37  ant to paragraph (a) of this subdivision.
    38    (c) In the absence of an express, contrary indication by the donor, an
    39  anatomical gift of a part is neither a refusal to give other parts nor a
    40  limitation  on  an individual's ability to make an anatomical gift under
    41  subdivision two of section forty-three hundred one of this article.
    42    2. [Any of the following persons, in the  order  of  priority  stated,
    43  may,  when  persons in prior classes are not reasonably available, will-
    44  ing, and able to act, at the time of death, and in the absence of actual
    45  notice of contrary indications by the  decedent,  or  actual  notice  of
    46  opposition  by  a  member  of the same class or prior class specified in
    47  paragraph (a), (b), (c), (d), (e), (f), (g) or (h) of this  subdivision,
    48  or  reason  to  believe  that]  (a) In the absence of a gift made by the
    49  donor under subdivision one of this section, and in the absence of actu-
    50  al notice of contrary indications by the decedent,  including  religious
    51  or  moral  objections, an anatomical gift [is contrary to the decedent's
    52  religious or moral beliefs, give all or any part] of the decedent's body
    53  may be made by any member of the following classes  of  persons  who  is
    54  reasonably  available,  in the order of priority listed, for any purpose
    55  specified in section forty-three hundred two of this article:
        S. 8998                             5
     1    [(a)] (i) the person designated as the decedent's  health  care  agent
     2  under  article  twenty-nine-C  of  this  chapter, subject to any written
     3  statement in the health care proxy form,
     4    [(b)]  (ii) the person designated as the decedent's agent in a written
     5  instrument under article forty-two of this chapter, subject to any writ-
     6  ten statement in the written instrument,
     7    [(c)] (iii) the spouse, if not legally separated from the patient,  or
     8  the domestic partner,
     9    [(d)] (iv) a son or daughter eighteen years of age or older,
    10    [(e)] (v) either parent,
    11    [(f)] (vi) a brother or sister eighteen years of age or older,
    12    [(g)] (vii) adult grandchildren of the decedent,
    13    (viii) a grandparent of the decedent,
    14    (ix) an adult who exhibited special care and concern for the decent,
    15    (x) a guardian of the person of the decedent at the time of his death,
    16  or
    17    [(h)]  (xi)  any  other  person  authorized or under the obligation to
    18  dispose of the body.
    19    (b) If there is more than one member of a class listed in subparagraph
    20  (iv), (vi), (vii) or (viii) of paragraph (a) of this  subdivision  enti-
    21  tled  to  make  an  anatomical gift, an anatomical gift may be made by a
    22  member of the class unless that member or a person knows of an objection
    23  by another member of the class. If an objection is known, the  gift  may
    24  be  made  only by a majority of the members of the class who are reason-
    25  ably available.
    26    3. [For the purposes of this  section,  "reasonably  available"  means
    27  that  a person to be contacted can be contacted without undue effort and
    28  willing and able to act in a  timely  manner  consistent  with  existing
    29  medical criteria necessary for the making of an anatomical gift.
    30    4. For the purposes of this section, "domestic partner" means a person
    31  who, with respect to another person:
    32    (a) is formally a party in a domestic partnership or similar relation-
    33  ship  with  the  other  person, entered into pursuant to the laws of the
    34  United States or any state, local or foreign jurisdiction, or registered
    35  as the domestic partner of the person with any  registry  maintained  by
    36  the  employer  of  either  party  or any state, municipality, or foreign
    37  jurisdiction; or
    38    (b) is formally recognized as a beneficiary or  covered  person  under
    39  the other person's employment benefits or health insurance; or
    40    (c)  is  dependent  or mutually interdependent on the other person for
    41  support, as evidenced by the totality of the circumstances indicating  a
    42  mutual  intent  to  be  domestic  partners including but not limited to:
    43  common ownership or joint leasing of real or personal  property;  common
    44  householding,  shared  income  or  shared  expenses; children in common;
    45  signs of intent to marry or become domestic partners under paragraph (a)
    46  or (b) of this subdivision; or the length of the  personal  relationship
    47  of the persons.
    48    Each  party  to  a  domestic partnership shall be considered to be the
    49  domestic partner of  the  other  party.  "Domestic  partner"  shall  not
    50  include a person who is related to the other person by blood in a manner
    51  that would bar marriage to the other person in New York state. "Domestic
    52  partner"  shall  also  not  include any person who is less than eighteen
    53  years of age or who is the adopted child of the other person or  who  is
    54  related  by  blood in a manner that would bar marriage in New York state
    55  to a person who is the lawful spouse of the other person.] An anatomical
        S. 8998                             6
     1  gift may not be made by a person  listed  in  subdivision  two  of  this
     2  section if:
     3    (a) a person in a prior class is reasonably available;
     4    (b) the person proposing to make an anatomical gift knows of a refusal
     5  or  contrary  indications  by the decedent, including that an anatomical
     6  gift is contrary to the decedent's religious or moral beliefs; or
     7    (c) the person proposing to  make  an  anatomical  gift  knows  of  an
     8  objection to making an anatomical gift by a member of the person's class
     9  or a prior class.
    10    4.  Any gift by a person designated in subdivision two of this section
    11  shall be by a document signed by him or her or made by his or her  tele-
    12  graphic, recorded telephonic, or other recorded message. Where a gift is
    13  made under this subdivision, either: (a) the donor shall indicate in the
    14  document  or  message  that  he  or she has no actual notice of contrary
    15  indications by the decedent and no reason to believe that an  anatomical
    16  gift is contrary to the decedent's religious or moral beliefs; or (b) an
    17  agent  of  the federally designated organ procurement organization or of
    18  the donee shall make reasonable effort to inquire of the donor or other-
    19  wise determine that the donor has no actual  notice  of  contrary  indi-
    20  cations by the decedent and no reason to believe that an anatomical gift
    21  is contrary to the decedent's religious or moral beliefs.
    22    5.  The  donee  shall  not accept the gift under the following circum-
    23  stances:
    24    (a) the donee has actual notice of contrary indication  by  the  dece-
    25  dent;
    26    (b)  where  [the  donor has not properly executed an organ donor card,
    27  driver's license authorization to make] an anatomical gift[, pursuant to
    28  paragraph (a) of subdivision one of section five  hundred  four  of  the
    29  vehicle  and  traffic  law,  registered  in the New York state organ and
    30  tissue donor registry under section  forty-three  hundred  ten  of  this
    31  article,  or  otherwise  given written authorization for organ or tissue
    32  donation, or has revoked any such authorization, and the gift is opposed
    33  by a person or persons in the highest priority available of the  classes
    34  specified  in  paragraph  (a),  (b),  (c),  (d), (e), (f), (g) or (h) of
    35  subdivision two of] is not properly made pursuant to this section; or
    36    (c) the donee has reason to believe that an anatomical gift is contra-
    37  ry to the decedent's religious or moral beliefs.
    38    6. A gift of all or part of a body authorizes any  examination  neces-
    39  sary to assure medical acceptability of gift for the purposes intended.
    40    7.  The  rights  of the donee created by the gift are paramount to the
    41  rights of others except as provided by section forty-three hundred eight
    42  of this article.
    43    8. The person who documents the making, amending  or  revoking  of  an
    44  anatomical  gift, acting reasonably and in good faith in accordance with
    45  this article, may accept an anatomical gift under this article made by a
    46  person who represents that he or she  is  entitled  to  consent  to  the
    47  donation.
    48    § 2. This act shall take effect on the one hundred eightieth day after
    49  it shall have become a law; provided, however, that effective immediate-
    50  ly,  the  commissioner  of  health shall make regulations and take other
    51  actions reasonably necessary to implement this act on that date.
    52                                   PART C
    53             Changes in anatomical gift revocation and amendment
        S. 8998                             7
     1    Section 1. Section 4305 of the public health law, as added by  chapter
     2  466 of the laws of 1970, is amended to read as follows:
     3    §  4305. [Revocation] Amendments or revocation of the gift. 1. [If the
     4  will, card, or other document or executed copy thereof has  been  deliv-
     5  ered  to  a  specified donee, the donor] An individual who has created a
     6  document of gift may amend or revoke the gift by:
     7    (a) [the execution and delivery to the donee of a signed statement]  a
     8  record signed by the donor, or
     9    (b)  an  oral  statement  of  revocation  made  in the presence of two
    10  persons, [communicated to the donee] at least one of whom is a disinter-
    11  ested witness, or
    12    (c) a later-executed document of gift that expressly amends or revokes
    13  a previous anatomical gift or portion of an anatomical gift, or
    14    (d) a statement during a terminal illness or injury  addressed  to  an
    15  attending physician and communicated to the donee, or
    16    [(d)]  (e) a signed card or document, found on his or her person or in
    17  his or her effects.
    18    2. (a) Subject to paragraphs (b) and (c) of this subdivision, an indi-
    19  vidual authorized to make an anatomical gift pursuant to subdivision two
    20  of section forty-three hundred one of this article shall revoke or amend
    21  such gift by:
    22    (i) a record signed by the donor, or
    23    (ii) an oral statement of revocation  made  in  the  presence  of  two
    24  persons, at least one of whom is a disinterested witness, or
    25    (iii)  a  later-executed  document  of  gift  that expressly amends or
    26  revokes a previous anatomical gift or portion of an anatomical gift.
    27    (b) If more than one member of a class listed  in  subparagraph  (iv),
    28  (vi),  (vii)  or  (viii)  of paragraph (a) of subdivision two of section
    29  forty-three hundred one of this article is reasonably available, a  gift
    30  made  pursuant  to subdivision two of section forty-three hundred one of
    31  this article may be amended only if a majority of the reasonably  avail-
    32  able  members  agree  to  the amending of the gift, or revoked only if a
    33  majority of the reasonably available members agree to  the  revoking  of
    34  the  gift  or  if  they  are equally divided as to whether to revoke the
    35  gift.
    36    (c) A revocation is effective only if, before  an  incision  has  been
    37  made  to  remove  a part from the donor's body or before invasive proce-
    38  dures have begun to prepare the recipient, the procurement organization,
    39  transplant hospital, or physician or technician knows of the revocation.
    40    3. Any document of gift[ which has not been delivered  to  the  donee]
    41  may  be  revoked in the manner set out in subdivision one or two of this
    42  section or by destruction, cancellation, or mutilation of  the  document
    43  and all executed copies thereof.
    44    [3.]    4.  Any  gift  made by a will may be revoked or amended in the
    45  manner provided for revocation or amendment of wills or as  provided  in
    46  subdivision one of this section.
    47    5.  In  the absence of contrary indications by the donor, a revocation
    48  or amendment of an anatomical gift is not  a  refusal  to  make  another
    49  anatomical  gift,  either  by  the  donor or another person specified in
    50  subdivision two of section forty-three hundred one of this article.
    51    § 2. This act shall take effect on the one hundred eightieth day after
    52  it shall have become a law; provided, however, that effective immediate-
    53  ly, the commissioner of health shall make  regulations  and  take  other
    54  actions reasonably necessary to implement this act on that date.
    55    § 3. Severability. If any provision of this act, or any application of
    56  any  provision  of  this act, is held to be invalid, or to violate or be
        S. 8998                             8
     1  inconsistent with any federal law or regulation, that shall  not  affect
     2  the  validity or effectiveness of any other provision of this act, or of
     3  any other application of any provision of this act, which can  be  given
     4  effect  without  that  provision  or  application;  and to that end, the
     5  provisions and applications of this act are severable.
     6    § 4. This act shall take effect immediately; provided,  however,  that
     7  the applicable effective dates of Parts A through C of this act shall be
     8  as specifically set forth in the last sections of such Parts.