Update Organ Donation Rules

Section 1. Section 1 of a chapter of the laws of 2019, amending the public health law relating to anatomical gifts, as proposed in legislative bills numbers S. 6000-A and A. 7800-A, is amended to read as follows:

Section 1. Legislative intent. The purpose of this legislation is to incorporate the amended provisions of the Uniform Anatomical Gift Act (UAGA) as drafted by the National Conference of Commissioners on Uniform State Laws to enhance the organ donation process. The UAGA was enacted in 1968 following the first successful heart transplant and was revised in 1987 and 2006 to clarify consent rules and other processes. While New York has made recent improvements to its organ donation registry and processes, it still faces a severe organ shortage. It is estimated that bringing New York's anatomical gift consent rules alone into agreement with the UAGA would result in increased numbers of organ donors and would save lives through transplantation. Provisions of this act should not be construed to interfere with a [potential] prospective donor's recorded intent to make a whole body donation in instances where the [potential] prospective donor's body is suitable for such donation at death, nor does the gift of a whole body preclude donation for transplant, unless such use is expressly refused by the donor or the authorizing party.

§ 2. Subdivisions 4, 11 and 12 of section 4300 of the public health law, as added by section 1 of part A of a chapter of the laws of 2019, amending the public health law relating to definitions and conforming

EXPLANATION--Matter in italics (underscored) is new; matter in brackets

[ ] is old law to be omitted.

LBD11680-11-9

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changes pertaining to anatomical gifts, as proposed in legislative bills numbers S. 6000-A and A. 7800-A, are amended to read as follows:

4. "Document of gift" means an organ donor card, whole body [organ] donor card, driver's license authorization to make an anatomical gift, pursuant to paragraph (a) of subdivision one of section five hundred four of the vehicle and traffic law, authorization to make an anatomical gift pursuant to any of the methods in subdivision five of section forty-three hundred ten of this article, or any other written authorization for an anatomical gift. The term "document of gift" includes a statement on a driver's license, identification card, enrollment in a donor registry, or any other anatomical gift document valid pursuant to the laws of this or any other state or of any document of gift valid pursuant to the laws of any other country appearing on a list of countries maintained by the commissioner for such purpose and published on the department's website.

11. ["Human paired organ donation" means the donation and receipt of human organs under the following circumstances:

(a) An individual (referred to in this subdivision as the "first donor") desires to make a living donation of a human organ specifically to a particular patient (referred to in this subdivision as "first patient"), but such donor is biologically incompatible as a donor for such patient.

(b) A second individual (referred to in this subdivision as the "second donor") desires to make a living donation of a human organ specifically to a second particular patient (referred to in this subdivision as the "second patient"), but such donor is biologically incompatible as a donor for such patient.

(c) Subject to paragraph (d) of this subdivision, the first donor is biologically compatible as a donor of a human organ for the second patient, and the second donor is biologically compatible as a donor of a human organ for the first patient.

(d) If there is any additional donor-patient pair as described in paragraph (a) or (b) of this subdivision, each donor in the group of donor-patient pairs is biologically compatible as a donor of a human organ for a patient in such group.

(e) All donors and patients in the group of donor-patient pairs (whether two pairs, or more than two pairs) enter into a single agreement to donate and receive such human organs, respectively, according to such biological compatibility in the group.

(f) Other than as described in paragraph (e) of this subdivision, no valuable consideration is knowingly acquired, received, or otherwise transferred with respect to the human organs referred to in such paragraph.

12.] "Non-transplant anatomic bank" means any person or facility that solicits, retrieves, performs donor selection and/or testing, preserves, transport, allocates, distributes, acquires, processes, stores, or arranges for the storage of non-transplant anatomic parts, including whole bodies, body segments, organs, or tissues from living or deceased donors, for education and/or research purposes specifically authorized by section forty-three hundred two of this article. The following shall not constitute a non-transplant anatomic bank:

(a) Any person or entity that stores non-transplant anatomic parts, except whole bodies and body segments, solely for purposes of research and/or education conducted by such person; provided the person or entity maintains on its premises a properly executed anatomical gift consent document, and

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(i) such person or entity is a legal donee pursuant to section fortythree hundred two of this article and obtains all organs/tissues from a tissue bank or non-transplant anatomic bank licensed by the department; or

(ii) is a general hospital conducting pathology services or research on non-transplant anatomic parts including whole bodies, recovered from within the facility from a living or deceased source;

(b) Any person or entity whose activities within the state of New York are limited to distribution of non-transplant anatomic parts to a tissue bank or non-transplant anatomic bank licensed by the department;

(c) Any person or entity that uses prepared slides and/or human-derived stem cell lines for purposes of education and/or research; and

(d) An employee of the federal government, provided an anatomical gift consent document has been executed in accordance with section fortythree hundred one of this article.

12. "Organ" shall have the same definition as in article forty-three-B of this chapter, but shall not be applied to heart valves for the purposes of this article.

§ 3. Subdivision 4 of section 4301 of the public health law, as added by section 1 of part B of a chapter of the laws of 2019, amending the public health law relating to changes in anatomical gift revocation and amendment, as proposed in legislative bills numbers S. 6000-A and A. 7800-A, is amended to read as follows:

4. Any gift by a person designated in subdivision two of this section shall be by a document signed by him or her or made by his or her telegraphic, recorded telephonic, or other recorded message. Where a gift is made under this subdivision, either: (a) the authorizing party shall indicate in the document or message that he or she has no actual notice of contrary indications by the decedent and no reason to believe that an anatomical gift is contrary to the decedent's religious or moral beliefs; or (b) an agent of the [federally designated] organ procurement organization or of the donee shall make reasonable efforts to inquire of the authorizing party or otherwise determine that the authorizing party has no actual notice of contrary indications by the decedent and no reason to believe that an anatomical gift is contrary to the decedent's religious or moral beliefs.

§ 4. Section 4305 of the public health law, as amended by section 2 of part B of a chapter of the laws of 2019, amending the public health law relating to changes in anatomical gift revocation and amendment, as proposed in legislative bills numbers S. 6000-A and A. 7800-A, is amended to read as follows:

§ 4305. Amendments or revocation of the gift. 1. An individual who has created a document of gift may only amend or revoke [the] his or her gift by:

(a) a record signed, subsequently to the creation of the document of gift by:

(i) [the donor] such individual;

(ii) another person authorized to make the anatomical gift on behalf of such individual; or

(iii) another [individual] person acting at the direction of [the donor] such individual or other person authorized to make the anatomical gift if [those individuals are physically] such individual is unable to sign; or

(b) an oral statement of revocation, subsequent to the creation of the gift, made by such individual in the presence of two persons, at least one of whom is a disinterested witness; or

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(c) a later-executed document of gift made by such individual that amends or revokes a previous anatomical gift or portion of an anatomical gift either expressly or by inconsistency; or

(d) a statement during a terminal illness or injury addressed to an attending physician and communicated to the donee made by such individual; or

(e) a signed card or document, found on [the prospective donor's] such individual's person or in [the prospective donor's] such individual's effects; or

(f) [the] such individual's will, created subsequently to the creation of the document of gift, whether or not the will is admitted to probate or invalidated after [the] such individual's death.

2. (a) Subject to paragraphs (b) and (c) of this subdivision, [an individual] a person authorized to make an anatomical gift on behalf of another individual pursuant to subdivision two of section forty-three hundred one of this article may revoke or amend such gift by:

(i) a record signed by [the donor] that individual; or

(ii) an oral statement of revocation, subsequent to the creation of the document of gift, made by that individual in the presence of two persons, at least one of whom is a disinterested witness; or

(iii) a later-executed document of gift that amends or revokes a previous anatomical gift or portion of an anatomical gift made by that individual, either expressly or by inconsistency.

(b) If more than one member of a class listed in subparagraph (iv), (vi), (vii), or (viii) of paragraph (a) of subdivision two of section forty-three hundred one of this article is reasonably available, a gift made pursuant to subdivision two of section forty-three hundred one of this article [may] shall be amended or revoked only if a majority of the reasonably available members agree [to the amending of the gift, or revoked only if a majority of the reasonably available members agree to the revoking of the gift or if they are equally divided as to whether to revoke the gift].

(c) [A] An amendment or revocation is effective only if, before an incision has been made to remove a part from the donor's body or before invasive procedures have begun to prepare the recipient, the procurement organization, transplant hospital, or physician or technician knows of the revocation.

3. Any document of gift may be revoked in the manner set out in subdivision one or two of this section or by destruction, cancellation, or mutilation of the document and all executed copies thereof.

4. Any gift made by a will may be revoked or amended in the manner provided for revocation or amendment of wills or as provided in subdivision one of this section.

5. In the absence of contrary indications by the donor, a revocation or amendment of an anatomical gift is not a refusal to make another anatomical gift not otherwise prohibited by the revocation or amendment, either by the prospective donor or another person specified in subdivision two of section forty-three hundred one of this article.

§ 5. The public health law is amended by adding a new article 43-A to read as follows:

ARTICLE 43-A

ANATOMICAL GIFT DUTIES OF HOSPITALS AND PROCUREMENT

ORGANIZATIONS

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Section 4351. Duties of hospital administrators, organ procurement

organizations, banks or storage facilities.

§ 4351. Duties of hospital administrators, organ procurement organizations, eye banks or tissue banks. 1. (a) When the death of a person in a hospital has occurred or is imminent, the hospital shall contact the organ procurement organization in order to make a preliminary determination of the suitability of the person for organ donation, except where not required by paragraph (c) of this subdivision. If a hospital has ascertained that the individual expressed a desire not to receive lifesustaining treatment, pursuant to section forty-three hundred six-b of this chapter, the hospital shall make the organ procurement organization aware.

(b) Where contact with the organ procurement organization is not required under criteria developed regionally by the organ procurement organization subject to the approval of such criteria by the department, the hospital shall contact the appropriate eye bank or tissue bank, except where not required by paragraph (c) of this subdivision.

(c) The organ procurement organization, in consultation with the tissue procurement providers, may issue criteria under which a hospital shall not be required to make the contact under this subdivision.