Bill Text: DE HB205 | 2015-2016 | 148th General Assembly | Draft
Bill Title: An Act To Amend Title 16 Of The Delaware Code Relating To Anatomical Gifts And Studies.
Spectrum: Slight Partisan Bill (Democrat 7-3)
Status: (Passed) 2015-09-03 - Signed by Governor [HB205 Detail]
Download: Delaware-2015-HB205-Draft.html
SPONSOR: |
Rep. Barbieri & Sen. Hall-Long |
|
Reps. Gray, Hudson, Keeley, Lynn, Mulrooney; Sens. Lavelle, Peterson |
HOUSE OF REPRESENTATIVES 148th GENERAL ASSEMBLY |
HOUSE BILL NO. 205 |
AN ACT TO AMEND TITLE 16 OF THE DELAWARE CODE RELATING TO ANATOMICAL GIFTS AND STUDIES. |
Section 1. Amend Chapter 27, Title 16 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows and redesignating accordingly:
Subchapter II. Uniform Anatomical Gift Act
§2710 Definitions.
As
used in subchapters this subchapter II
and III of this chapter:
(1) "Adult" means an individual who is at least 18 years of age.
(2) "Advance healthcare directive" means a directive under § 2503 of this title.
(2) "Anatomical donation" or "anatomical donor" means a human body part donation or a human body
part donor.
(4) "Anatomical gift" means a donation of all or part of a human body to take effect after the donor's death for the purpose of transplantation, therapy, research, or education.
(4) (5) "Decedent'' means
a deceased individual and includes a stillborn infant or fetus.
(5) (6) "Department''
means the Delaware Department of Health and Social Services.
(10) "Donee" means a person authorized to receive an anatomical gift.
(6) (11) "Donor'' means an
individual who makes a gift of all or part of the individual's body.
(12) "Donor registry" means a database which contains records of anatomical gifts. The term includes the Donate Life Delaware Registry.
(7) (14) "Fund'' means the
Organ and Tissue Donor Awareness Trust Fund.
(8) (15) "Hospital'' means
a hospital licensed, accredited or approved under the laws of any state and
includes a hospital operated by the United States government, a state or a
subdivision thereof, although not required to be licensed under state laws.
(16) "Know" means to have actual knowledge.
(18) "Minor" means an individual who is under 18 years of age.
(9) (19) "OPO" means the federally certified organ procurement
organization for the State.
(10) (20) "Part" includes organs, tissues, eyes, bones, arteries,
blood, other fluids and other portions of a human body, and "part''
includes "parts''.
(11) (21) "Person" means an individual, corporation, government or
governmental subdivision or agency, statutory trust, business trust, estate,
trust, partnership or association or any other legal entity.
a. A medical examiner having jurisdiction over the decedent's body.
b. A warden or director of a correctional facility where the decedent was incarcerated.
c. An individual who is otherwise authorized or obligated to dispose of a decedent's body.
(12) (23) "Physician" or "surgeon" means a
physician or surgeon licensed or authorized to practice under the laws of any
state.
(13) (28) "Recovery
specialist" means a medical professional licensed
by this or another state or technician trained in accordance with federal
standards pursuant to 42 U.S.C. §274(b) and nationally accredited standards
for human body part removal.
(14) (29) "State" includes a state, district, commonwealth, territory,
insular possession and any other area subject to the legislative authority of
the United States of America.
§2711 Persons who may execute an anatomical gift.
(a) Any individual of sound mind and 18 years of age or more or an agent of such an individual, or an individual not of such age who has parental consent may give all or any part of the individual's body for any purposes specified in §2712 of this title, the gift to take effect upon the donor's death. However, a married minor may make such a donation without parental consent.
(b) "Parental
consent'' as used in this section shall be defined as the written recorded
permission by any of the following persons in order of priority stated
below when persons of prior classes are no longer living or no longer have
contractual capacity and when there is no notice to a donee of an objection,
written or otherwise, by a person of the same class:
(1) Either parent;
(2) A legal guardian;
(3) Any individual having legal custody.
(c) Any of the
following persons, who is reasonably available, in
order of priority stated, when persons in prior classes are not available at
the time of death and in the absence of actual
notice of contrary indications known
objections by the decedent or actual notice
of opposition by a member of the same or a prior class, may give all or
any part of the decedent's body for any purpose specified in §2712 of this
title:
(12)
The spouse of the decedent (unless a petition for
divorce has been filed);
(23)
An adult son or daughter, 18 years of age or older child of
the decedent;
(34)
EitherA parent of the decedent;
(45)
An adult brother or sistersibling of the decedent;
(6) An adult grandchild of the decedent;
(7) An adult niece or nephew of the decedent;
(8) An adult aunt or uncle of the decedent;
(510)
A guardian of the person of the decedent at the time of death;
(611)
Any other person authorized or under obligationed to
dispose of the decedent's body.;
(d) If the donee
has actual notice of contrary indications knows of an objection by the decedent
or that a gift authorized by a member of a
class is opposed by afifty
percent or more of the reasonably available members of the same class
or by a member of a prior class, the
donee shall not accept the gift. The persons authorized by subsection (c) of
this section may make the gift after death or
immediately before death. A gift made
by a person authorized pursuant to subsection (c) may be amended or revoked by
that person subject to §2715(d).
(e) A gift of all or part of a body authorizes any examination necessary to assure medical acceptability of the gift for the purposes intended.
(f) The rights of the donee created by the gift are paramount to the rights of others except as provided by §2716(f) of this title.
(g) A donor's gift of all or any part of the individual's body, as indicated pursuant to this chapter, including, but not limited to, a designation on a driver's license or identification card, donor card, advance healthcare directive, will or other document of gift, may not be revoked by the next-of-kin or other persons identified in subsection (c) of this section, nor shall the consent of any such person at the time of the donor's death or immediately thereafter be necessary to render the gift valid and effective.
(h) The absence of a document of gift, in and of itself, shall not create any presumption regarding the person's wishes regarding anatomical donation.
§2712 Persons who may become donees, and purposes for which anatomical gifts may be made.
(a)The following persons
may become donees of gifts of bodies or parts thereof for the purposes stated: An anatomical gift may be made to any of the
following persons named in the document of gift:
(4)
Any specified individual for therapy or
transplantation needed by that individualAn
organ procurement organization.
(1)If the part is an eye, the gift passes to the appropriate eye bank.
(2)If the part is tissue, the gift passes to the appropriate tissue bank.
§2713 Manner of executing anatomical gifts.
(a) A gift of all or part of the body under §2711(a) of this title may be made by will. The gift becomes effective upon the death of the testator without waiting for probate. If the will is not probated, or if it is declared invalid for testamentary purposes, the gift, to the extent that it has been acted upon in good faith, is nevertheless valid and effective.
(b) A gift of
all or part of the body under §2711(a) of this title may also be made by a document other than a will. The gift becomes effective upon the death of the
donor. The document, which may be a card designed to be carried on the person,
must be, including authorizing a statement
or symbol indicating that the donor has made an anatomical gift to be recorded
in a donor registry or on the donor's driver's license or identification card,
or a card or other record signed by the donor
in the presence of 2 witnesses who need not be in the presence of each other
but who must sign the document in the donor's presence. If the donor cannotor other
person making a gift is physically unable to sign a record, the documentrecord may be signed for the donor at the
donor's direction and in the donor's presence and in the presence of 2
witnesses who must sign the document in the donor's presence. Delivery of the
document of gift during the donor's lifetime is not necessary to make the gift
valid. Revocation, suspension, expiration or
cancellation under Title 21 (Motor Vehicles) of a driver's license or
identification card upon which an anatomical gift is indicated does not
invalidate the gift.
(c) The gift may
be made to a specified donee or without specifying a
donee. If the latter, the gift may be accepted by the attending physician as
donee upon or following death. If the gift is made to a specified donee who is
not available at the time and place of death, the attending physician upon or
following death, in the absence of any expressed indication that the donor
desired otherwise, may accept the gift as donee. TheA physician who becomes a donee under this
subsection shall not participate in the procedures for removing or
transplanting a part.
(ed) Any
gift by a person designated in §2711(c) of this title shall be made by a
document signed by the person or made by the person's telegraphic, recorded,
telephonic or other recorded message.
(fe) A
person who so directs the manner in which the person's body or any part of the
person's body shall be disposed of shall receive no remuneration or other thing
of value for such disposition.
(f) A document of gift is valid if executed in accordance with:
(2) the law of the state or country where it was executed; or
(3) the law of the state or country where, at the time of execution of the document of gift, the person making the anatomical gift (i) is domiciled; (ii) has a place of residence; or (iii) is a citizen.
§2714 Delivery of document of gift.
If the gift is made by the donor to a specified donee, the will, card or other document of gift, or an executed copy thereof, may be delivered to the donee to expedite the appropriate procedures immediately after death, but delivery is not necessary to the validity of the gift. The will, card or other document of gift, or an executed copy thereof, may be deposited in any hospital, bank or storage facility or registry office that accepts them for safekeeping or for facilitation of procedures after death. On request of any interested party upon or after the donor's death, the person in possession shall produce the document for examination.
§2715 Amendment or revocation of the gift.
(a) If the will, card or other document or executed copy thereof has been delivered to a specified donee, the donor may amend or revoke the gift by:
(1) The execution and delivery to the donee of a signed statement;
(2) An oral statement made in the presence of 2 persons and communicated to the donee;
(3) A statement during a terminal illness or injury addressed to an attending physician and communicated to the donee; or
(4) A signed card or document found on the person or in the person's effects.
(b) Any document of gift which has not been delivered to the donee may be revoked by the donor in the manner set in subsection (a) of this section or by destruction, cancellation or mutilation of the document and all executed copies thereof.
(c) Any gift made by a will may also be amended or revoked in the manner provided for amendment or revocation of wills or as provided in subsection (a) of this section.
§2716 Rights and duties at death.
(a) The donee may accept or reject the gift. If the donee accepts a gift of the entire body, the donee may, subject to the terms of the gift, authorize embalming and the use of the body in funeral services. If the gift is of a part of the body, the donee, upon the death of the donor and prior to embalming, shall cause the part to be removed without unnecessary mutilation. After removal of the part, custody of the remainder of the body vests in the surviving spouse, next of kin or other persons under obligation to dispose of the body. The heir of any donor, at the time the disposition of the body takes place, may submit a request in writing to the donee that the body be returned to the heir at such time as the donee either refuses the disposition of the entire body or the parts thereof or determines that the donee no longer has use of the remains.
(b) A surgeon, physician, funeral director, recovery specialist or eye bank technician who is authorized to remove any part in accordance with this subchapter is also authorized to draw or secure a blood sample from the donor, in order to screen the tissue received for medical purposes.
(c) The time of death shall be determined by a physician who attends the donor at the donor's death or, if none, the physician who certifies the death. This physician shall not participate in the procedures for removing or transplanting a part.
(d) A person who acts in good faith in accord with the terms of this subchapter or under the anatomical gift laws of another state (or a foreign country) is not liable for damages in any civil action or subject to prosecution in any criminal proceeding for that act.
(e) Where no other provision for the same exists, a body, or the remains thereof, after it is no longer needed for the purpose indicated by the donor, may be buried at public expense on order of the Medical Council of Delaware, but in no case shall the expense of the burial exceed $100.
(f) This subchapter is subject to the laws of this State prescribing powers and duties with respect to autopsies. The OPO is authorized to obtain a copy of an autopsy report in a timely fashion upon request and payment of reasonable copying fees.
The following forms may be used to accomplish the
purposes of this subchapter:
Anatomical Gift by Next of Kin or Other Authorized
Person
I am the surviving: ( ) ....spouse; ( ) ....adult son
or daughter; ( ) ....parent; ( ) ....adult brother or sister; ( ) ....guardian;
␣..........., authorized to dispose of the body:
Dated.......... City and State...................
Address of Survivor Anatomical Gift by a Living Donor
I am of sound mind and 18 years or more of age.
I give: ( ) ....my body; ( ) ....any needed organs or
parts; ( ) ....the following organs or parts ;
Dated.......... City and State.................
Signed by the Donor in the presence of the following
who sign as witnesses.
Witness Address of Donor Anatomical Gift by a Living
Minor Donor
I am of sound mind and under 18 years of age.
I give: ( ) ....my body; ( ) ....any needed organs or
parts; ( ) ....the following organs or parts ;
Dated........... City and State......................
other Person Authorized by Law
Witness Address of Consenting Party
§2721 Requests for anatomical gifts.
(a) Identification
of potential anatomical donors. At or near the time of death of any patient age 75 years or less in an acute care generalin a hospital, the attending physician or
hospital designee shall make contact with the OPO in order to determine the
suitability for organ, tissue and eye donation for any purpose specified under
this chapter. This contact and the disposition shall be noted in the patient's
medical record.
(b) Protocol for referral of potential anatomical donors to OPO.
(1) The person designated by the acute
care general hospital to contact the OPO shall have the following
information available:
a. Patient's name and identifier number;
b. Patient's age;
c. Anticipated cause of death;
d. Past medical history; and
e. Other pertinent medical information.
(2)a. If the OPO determines that donation is not appropriate based on established medical criteria, this shall be noted by hospital personnel in the patient's record and no further action shall be necessary.
a. Whether or not a document of gift is known to exist or whether a gift was made; and
a. To evaluate medical suitability for donation and to facilitate the donation process; and
b. As required or permitted by law.
b. Ascertained that the individual expressed a known objection.
(36) Within 1 year of enactment of this section, each acute
care general Each hospital
in the state shall develop and implement a protocol for referring potential
anatomical donors as provided in this section. The protocol shall require that,
at or near the time of the death of any patient age
75 years or less, the acute care general hospital
shall contact by telephone the OPO to determine suitability for anatomical
donation of the potential donor. The protocol shall encourage discretion and
sensitivity to family circumstances and beliefs in all discussions regarding
donations of organs, tissue or eyes.
a. Limitation. If the hospital staff advises the OPO that the
hospital staff has received actual noticeknowledge
that the decedent did not wish to be an anatomical donor, the gift of all
or any part of the decedent's body shall not be requested.
b. Medical Record Reviews. Death Medical record reviews must be
performed annually in each acute care general hospital for the sole purpose of
determining anatomical donor potential at the hospital. The hospital may
perform the medical record review or may designate the OPO to conduct the
review. If the hospital chooses to conduct its own review, it must do so in
accordance with clinical specifications and guidelines established by the OPO.
If the hospital conducts the review, the OPO must provide the necessary
training to hospital personnel conducting the review. The hospital must report
the results of the review to the OPO no later than 45 days following the
completion of the review. If the hospital designates the OPO to conduct the
review, the OPO shall provide the hospital with written assurance that the OPO
shall maintain the confidentiality of patient identifying information.''
§2722 Persons
qualified to consentConfidentiality
requirement.
(1) The
spouse of the patient or decedent
recipient;
(2) A child of the patient or decedent, if such child is
18 years of age or olderIf the donor is
alive, the donor; and
(3)
Either parent of the patient or decedent;If the donor is deceased, the next-of-kin of the
donor.
(4) A sibling of the patient or decedent, if such
sibling is 18 years of age or older; and
(5) The guardian of the patient or decedent at the
time of the decedent's death.
§2723 Recovery of human body parts by recovery specialistDonate Life Delaware Registry.
(1) Provided to the Donate Life Delaware Registry;
(2) On the individual's physical driver's license or identification card;
(3) On an advance healthcare directive;
(5) Submitted under any other statutory provision.
§2724 Organ donation designation on driver's license or identification card.
Beginning as soon as practicable but no later than July 1, 1998, the Delaware Division of Motor Vehicles shall modify the driver's license and identification card application process and renewal system to obtain information regarding an individual's consent to anatomical donation, including a process to allow persons under age 18 to register as donors with parental consent as defined in §2711(b) of this title. The following question shall be asked:
Do you wish to have the organ donor designation printed on your driver's license?
Only an affirmative
response of an individual shall be noted on the front of the driver's license
or identification card with the word "Organ Donor"
or a symbol indicating the donor designation and recorded in the individual's computer record with the Division of
Motor VehiclesDonate Life Delaware
Registry. The Department shall record and store all donor designations in the
Donate Life Delaware Registry, regardless of whether a driver's license or identification
card is issued. The OPO shall be given access to the foregoing donor
information 24 hours a day through the Division of Motor Vehicles computer
database. Notwithstanding the Driver's Privacy Protection Act, Title 21,
Section 305, the Division of Motor Vehicles is authorized to provide the OPO
with the foregoing donor information. The OPO shall not be assessed a fee or
other charges for such access. The donor designation on the driver's license or
identification card or inclusion in the Donate Life
Delaware Registry shall be deemed sufficient to satisfy all
requirements for consent to organ and tissue donation.
§2725 Declaration concerning medical treatmentCollaboration between departments and organ
procurement organizations.
(1) Benefits associated with organ and tissue donations;
(2) Scope and operation of the state's donor program; and
a. Effectively inform the public about the donor program; and
§2727 Consent not necessary forFacilitation of anatomical donationgift from
decedent whose death is under investigation.
§2731 Relation to Electronic Signatures in Global and National Commerce Act.
Section 2. Amend Chapter 10 of Title 16 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows and redesignating accordingly:
§1018. Maintaining anatomical gifts data.
The absence of a document of anatomical gift, in and of
itself, shall not create any presumption regarding the patient's wishes
regarding anatomical donation.
Section 4.This Act shall take effect thirty (30) days after its enactment into law.
SYNOPSIS
Delaware's Uniform Anatomical Gift Act (UAGA), was last updated in 1998.Since then, federal law and clinical practice surrounding organ and tissue donation has changed.To that end, the bill updates the provisions of existing Delaware law to provide consistency with federal law, ensure clinical best practices and to facilitate increased donor designation rates. The bill incorporates input from stakeholder groups, including the hospitals, practitioners and state agencies that have an important role in this area. Specifically the bill addresses three key areas. First, to better align with clinical best practices, the bill revises the hierarchy of who may authorize donation more closely to hospital practice. The bill facilitates processes for the timely and rapid determination of a gift and incorporates current practice by providing for collaboration with the medical examiner when necessary, facilitating both donation and forensic investigations. Second, to enhance organ and tissue donor awareness, the bill updates current language regarding inclusion of the donor designation on driver's licenses and incorporates existing DelDOT initiatives regarding donor designation. The bill also formally recognizes the existing driver's license registry as the "Donate Life Delaware Registry". Third, in terms of public health and safety, the bill reinforces the purposes for which anatomical gifts can be used and extends public health protections to safeguard the interests of Delawareans. The bill also ensures the privacy of donors and recipients. |