Bill Text: NY A01133 | 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: (Introduced - Dead) 2019-12-06 - enacting clause stricken [A01133 Detail]

Download: New_York-2019-A01133-Amended.html



                STATE OF NEW YORK
        ________________________________________________________________________

                                         1133--D

                               2019-2020 Regular Sessions

                   IN ASSEMBLY

                                    January 14, 2019
                                       ___________

        Introduced by M. of A. GOTTFRIED, ORTIZ -- read once and referred to the
          Committee  on  Health  --  committee discharged, bill amended, ordered
          reprinted as amended  and  recommitted  to  said  committee  --  again
          reported  from  said  committee  with amendments, ordered reprinted as
          amended and recommitted to said  committee  --  committee  discharged,
          bill  amended,  ordered  reprinted  as amended and recommitted to said
          committee -- reported and  referred  to  the  Committee  on  Codes  --
          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

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD03867-09-9

        A. 1133--D                          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 of
    21  his] 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;  common

        A. 1133--D                          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 donor

        A. 1133--D                          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 or
    15  any 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 [an
    20  organ donor card, driver's license authorization to make  an  anatomical
    21  gift,  pursuant  to  paragraph  (a)  of  subdivision one of section five
    22  hundred four of the vehicle and traffic law, registered in the New  York
    23  state  organ and tissue donor registry under section forty-three hundred
    24  ten of this article, or has otherwise given  written  authorization  for
    25  organ  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-
    27  es specified in paragraphs (a) through (h) of subdivision  two  of  this
    28  section,]  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  take
    35  effect  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 license
    38  authorization to make an anatomical gift, pursuant to paragraph  (a)  of
    39  subdivision  one of section five hundred four of the vehicle and traffic
    40  law, or has otherwise given written authorization for  organ  or  tissue
    41  donation] 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 a

        A. 1133--D                          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,
     4  may, when persons in prior classes are not reasonably  available,  will-
     5  ing, and able to act, at the time of death, and in the absence of actual
     6  notice  of  contrary  indications  by  the decedent, or actual notice of
     7  opposition by a member of the same class or  prior  class  specified  in
     8  paragraph  (a), (b), (c), (d), (e), (f), (g) or (h) of this subdivision,
     9  or 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's
    13  religious 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" means
    42  that a person to be contacted can be contacted without undue effort  and
    43  willing  and  able  to  act  in a timely manner consistent with existing
    44  medical criteria necessary for the making of an anatomical gift.
    45    4. For the purposes of this section, "domestic partner" means a person
    46  who, with respect to another person:
    47    (a) is formally a party in a domestic partnership or similar relation-
    48  ship with the other person, entered into pursuant to  the  laws  of  the
    49  United States or any state, local or foreign jurisdiction, or registered
    50  as  the  domestic  partner of the person with any registry maintained by
    51  the employer of either party or  any  state,  municipality,  or  foreign
    52  jurisdiction; or
    53    (b)  is  formally  recognized as a beneficiary or covered person under
    54  the other person's employment benefits or health insurance; or
    55    (c) is dependent or mutually interdependent on the  other  person  for
    56  support,  as evidenced by the totality of the circumstances indicating a

        A. 1133--D                          6

     1  mutual intent to be domestic partners  including  but  not  limited  to:
     2  common  ownership  or joint leasing of real or personal property; common
     3  householding, shared income or  shared  expenses;  children  in  common;
     4  signs of intent to marry or become domestic partners under paragraph (a)
     5  or  (b)  of this subdivision; or the length of the personal relationship
     6  of the persons.
     7    Each party to a domestic partnership shall be  considered  to  be  the
     8  domestic  partner  of  the  other  party.  "Domestic  partner" shall not
     9  include a person who is related to the other person by blood in a manner
    10  that would bar marriage to the other person in New York state. "Domestic
    11  partner" shall also not include any person who  is  less  than  eighteen
    12  years  of  age or who is the adopted child of the other person or who is
    13  related by blood in a manner that would bar marriage in New  York  state
    14  to 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,
    38  driver's license authorization to make] an anatomical gift[, pursuant to
    39  paragraph (a) of subdivision one of section five  hundred  four  of  the
    40  vehicle  and  traffic  law,  registered  in the New York state organ and
    41  tissue donor registry under section  forty-three  hundred  ten  of  this
    42  article,  or  otherwise  given written authorization for organ or tissue
    43  donation, or has revoked any such authorization, and the gift is opposed
    44  by a person or persons in the highest priority available of the  classes
    45  specified  in  paragraph  (a),  (b),  (c),  (d), (e), (f), (g) or (h) of
    46  subdivision 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 a

        A. 1133--D                          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 the
    12  will, card, or other document or executed copy thereof has  been  deliv-
    13  ered  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.

        A. 1133--D                          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.
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