Bill Text: NY A07800 | 2019-2020 | General Assembly | Amended


Bill Title: Relates to definitions and conforming changes pertaining to anatomical gifts (Part A); gift revocation (Part B); dispositions of gifts (Part C); documents of gifts (Part D); duties of donees (Part E); advance directives (Part F); and prohibition of sales of organs (Part G).

Spectrum: Bipartisan Bill

Status: (Introduced) 2019-06-20 - substituted by s6000a [A07800 Detail]

Download: New_York-2019-A07800-Amended.html



                STATE OF NEW YORK
        ________________________________________________________________________

                                         7800--A

                               2019-2020 Regular Sessions

                   IN ASSEMBLY

                                      May 23, 2019
                                       ___________

        Introduced  by  M.  of A. GOTTFRIED, ORTIZ, PALMESANO, RAIA -- read once
          and referred to the Committee on Health -- 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 (Part A); to amend
          the public health law, in relation to changes in anatomical gift revo-
          cation and amendment; and to repeal certain  provisions  of  such  law
          relating thereto (Part B); to amend the public health law, in relation
          to  uses  and  dispositions of anatomical gifts; and to repeal certain
          provisions of such law relating thereto (Part C); to amend the  public
          health  law, in relation to delivery of documents of gift (Part D); to
          amend the public health law, in  relation  to  rights  and  duties  of
          donees  at death (Part E); to amend the public health law, in relation
          to interactions between advance directives and anatomical gifts  (Part
          F);  and to amend the public health law, in relation to prohibition of
          sales or purchase of human organs (Part G)

          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  incorporate the amended provisions of the Uniform  Anatomical  Gift  Act
     3  (UAGA) as drafted by the National Conference of Commissioners on Uniform
     4  State  Laws to enhance the organ donation process.  The UAGA was enacted
     5  in 1968 following the first successful heart transplant and was  revised
     6  in 1987 and 2006 to clarify consent rules and other processes. While New
     7  York  has  made  recent  improvements to its organ donation registry and
     8  processes, it still faces a severe organ shortage.  It is estimated that
     9  bringing New York's anatomical gift consent rules alone  into  agreement
    10  with  the  UAGA  would  result  in increased numbers of organ donors and
    11  would save lives through transplantation. Provisions of this act  should
    12  not  be  construed to interfere with a potential donor's recorded intent

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD11680-07-9

        A. 7800--A                          2

     1  to make a whole body donation in instances where the  potential  donor's
     2  body  is  suitable  for  such  donation at death, nor does the gift of a
     3  whole body preclude donation for transplant, unless such use is express-
     4  ly refused by the donor or the authorizing party.
     5    § 2. Short title. This act shall be known and may be cited as the "New
     6  York Gift Act".
     7    §  3. This act enacts into law changes to the anatomical gift process.
     8  Each component is wholly contained within a Part identified as  Parts  A
     9  through  G.  The  effective date for each particular provision contained
    10  within such Part is set forth in the last  section  of  such  Part.  Any
    11  provision  in  any section contained within a Part, including the effec-
    12  tive date of the Part, which makes a reference to  a  section  "of  this
    13  act",  when  used in connection with that particular component, shall be
    14  deemed to mean and refer to the corresponding section  of  the  Part  in
    15  which  it  is  found.  Sections  four and five of this act set forth the
    16  severability and the general effective dates of this act, respectively.

    17                                   PART A

    18    Section 1. Section 4300 of the public health law, as added by  chapter
    19  466 of the laws of 1970, is amended to read as follows:
    20    §  4300. Definitions. As used in this [section] article, the following
    21  terms shall have the following meanings:
    22    1. ["Bank or storage facility" means a hospital, laboratory  or  other
    23  facility licensed or approved under the laws of any state for storage of
    24  human  bodies  or parts thereof, for use in medical education, research,
    25  therapy, or transplantation to individuals] "Anatomical gift" or  "gift"
    26  means a donation of a whole body or part of a human body, to take effect
    27  after  the  donor's  death, for the purpose of transplantation, therapy,
    28  research or education.
    29    2. "Decedent" means a deceased individual of any age [and] whose  body
    30  or part is or may be the source of an anatomical gift. The term includes
    31  a  stillborn  infant  [or]  and,  subject to restrictions imposed by law
    32  other than this article, a fetus.
    33    3. "Disinterested witness" means a  witness  other  than  the  spouse,
    34  domestic  partner,  child,  parent, sibling, grandchild, grandparent, or
    35  guardian of the individual who makes, amends,  revokes,  or  refuses  to
    36  make  an  anatomical  gift,  or  a close friend, or another adult who is
    37  related to the decedent by blood, marriage, or adoption.
    38    4. "Document of gift" means an organ  donor  card,  whole  body  organ
    39  donor  card,  driver's license authorization to make an anatomical gift,
    40  pursuant to paragraph (a) of subdivision one  of  section  five  hundred
    41  four of the vehicle and traffic law, authorization to make an anatomical
    42  gift  pursuant  to  any  of  the  methods in subdivision five of section
    43  forty-three hundred ten of this article, or any other  written  authori-
    44  zation  for  an  anatomical gift. The term "document of gift" includes a
    45  statement on a driver's license, identification card,  enrollment  in  a
    46  donor  registry, or any other anatomical gift document valid pursuant to
    47  the laws of this or any other state.
    48    5. "Domestic partner" has the same meaning as described in subdivision
    49  seven of section twenty-nine hundred ninety-four-a of this chapter.
    50    6. "Donee" means an individual  or  entity  authorized  to  accept  an
    51  anatomical  gift  pursuant  to  section  forty-three hundred two of this
    52  article.
    53    7. "Donor" means an individual [who makes a gift of  all  or  part  of
    54  his] whose body or part is the subject of an anatomical gift.

        A. 7800--A                          3

     1    [4.]  8.  "Eye  bank"  means a person that is licensed, accredited, or
     2  regulated under federal or state law to engage in the recovery,  screen-
     3  ing,  testing,  processing,  storage,  or  distribution of human eyes or
     4  portions of human eyes.
     5    9.  "Guardian"  means  a person appointed by a court to make decisions
     6  regarding the support, care, education, health, or welfare of  an  indi-
     7  vidual. The term does not include a guardian ad litem.
     8    10.  "Hospital"  means  a  hospital  licensed, accredited, or approved
     9  under the laws of any state and includes  a  hospital  operated  by  the
    10  United  States  Government,  a state, or a subdivision thereof, although
    11  not required to be licensed under state laws.
    12    [5.] 11. "Human paired organ donation" means the donation and  receipt
    13  of human organs under the following circumstances:
    14    (a)  An  individual  (referred  to  in  this subdivision as the "first
    15  donor") desires to make a living donation of a human organ  specifically
    16  to  a  particular  patient  (referred  to  in this subdivision as "first
    17  patient"), but such donor is biologically incompatible as  a  donor  for
    18  such patient.
    19    (b)  A  second  individual  (referred  to  in  this subdivision as the
    20  "second donor") desires to make a  living  donation  of  a  human  organ
    21  specifically  to a second particular patient (referred to in this subdi-
    22  vision as the "second patient"), but such donor is  biologically  incom-
    23  patible as a donor for such patient.
    24    (c)  Subject  to paragraph (d) of this subdivision, the first donor is
    25  biologically compatible as a donor of  a  human  organ  for  the  second
    26  patient, and the second donor is biologically compatible as a donor of a
    27  human organ for the first patient.
    28    (d)  If  there  is  any  additional donor-patient pair as described in
    29  paragraph (a) or (b) of this subdivision, each donor  in  the  group  of
    30  donor-patient  pairs  is  biologically  compatible as a donor of a human
    31  organ for a patient in such group.
    32    (e) All donors and  patients  in  the  group  of  donor-patient  pairs
    33  (whether  two  pairs, or more than two pairs) enter into a single agree-
    34  ment to donate and receive such human organs, respectively, according to
    35  such biological compatibility in the group.
    36    (f) Other than as described in paragraph (e) of this  subdivision,  no
    37  valuable  consideration  is  knowingly  acquired, received, or otherwise
    38  transferred with respect to the human organs referred to in  such  para-
    39  graph.
    40    12.  "Non-transplant  anatomic bank" means any person or facility that
    41  solicits, retrieves, performs donor selection and/or testing, preserves,
    42  transport,  allocates,  distributes,  acquires,  processes,  stores,  or
    43  arranges  for  the  storage  of non-transplant anatomic parts, including
    44  whole bodies, body segments, organs, or tissues from living or  deceased
    45  donors,  for  education and/or research purposes specifically authorized
    46  by section forty-three hundred two of this article. The following  shall
    47  not constitute a non-transplant anatomic bank:
    48    (a)  Any  person  or entity that stores non-transplant anatomic parts,
    49  except whole bodies and body segments, solely for purposes  of  research
    50  and/or education conducted by such person; provided the person or entity
    51  maintains  on  its  premises a properly executed anatomical gift consent
    52  document, and
    53    (i) such person or entity is a legal donee pursuant to section  forty-
    54  three  hundred two of this article and obtains all organs/tissues from a
    55  tissue bank or non-transplant anatomic bank licensed by the  department;
    56  or

        A. 7800--A                          4

     1    (ii)  is  a general hospital conducting pathology services or research
     2  on non-transplant anatomic parts including whole bodies, recovered  from
     3  within the facility from a living or deceased source;
     4    (b) Any person or entity whose activities within the state of New York
     5  are limited to distribution of non-transplant anatomic parts to a tissue
     6  bank or non-transplant anatomic bank licensed by the department;
     7    (c)  Any  person or entity that uses prepared slides and/or human-der-
     8  ived stem cell lines for purposes of education and/or research; and
     9    (d) An employee of the federal government, provided an anatomical gift
    10  consent document has been executed in  accordance  with  section  forty-
    11  three hundred one of this article.
    12    13.  "Organ procurement organization" means a person designated by the
    13  secretary of the United States Department of Health and  Human  Services
    14  as an organ procurement organization.
    15    14. "Parent" means a parent whose parental rights have not been termi-
    16  nated.
    17    15.  "Part" of a body means and includes organs, tissues, eyes, bones,
    18  arteries, blood, other fluids and other portions of a  human  body,  and
    19  "part" includes "parts". The term does not include the whole body.
    20    [6.]  16.  "Person"  means  an  individual, corporation, government or
    21  governmental subdivision or agency, business trust, estate, trust, part-
    22  nership or association, or any other legal entity.
    23    [7.] 17.  "Physician"  or  "surgeon"  means  a  physician  or  surgeon
    24  licensed or authorized to practice under the laws of any state.
    25    [8.]  18.  "Prospective donor" means an individual who is dead or near
    26  death and has been determined by a procurement organization  to  have  a
    27  part  that  could  be  medically  suitable for transplantation, therapy,
    28  research, or education. The term does not include an individual who  has
    29  made a refusal.
    30    19.  "Procurement  organization"  means an eye bank, organ procurement
    31  organization, or tissue bank.
    32    20. "Reasonably available" means able to be contacted by a procurement
    33  organization without undue effort and willing and able to act in a time-
    34  ly manner consistent with existing medical criteria  necessary  for  the
    35  making of an anatomical gift.
    36    21.  "Record" means information that is inscribed on a tangible medium
    37  or that is stored in an electronic or other medium and is retrievable in
    38  perceivable form.
    39    22. "Refusal" means a record created under section forty-three hundred
    40  five of this article that  expressly  states  an  intent  to  bar  other
    41  persons from making an anatomical gift.
    42    23.  "State"  includes  any  state, district, commonwealth, territory,
    43  insular possession, and  any  other  area  subject  to  the  legislative
    44  authority of the United States of America.
    45    24.  "Tissue  bank"  means  a  person that is licensed, accredited, or
    46  regulated under federal or state law to solicit, retrieve, perform donor
    47  selection and/or testing,  preserve,  transport,  allocate,  distribute,
    48  acquire,  process, store or arrange for the storage of human tissues for
    49  transplantation, transfer, therapy, artificial insemination or implanta-
    50  tion, including autogeneic procedures.
    51    25. "Whole body" means the intact corporeal remains of  an  individual
    52  after the time of death.
    53    26.  "Whole  body donor card" means a card or other writing indicating
    54  the donor's authorization to make an anatomical gift of a whole body  to
    55  a  non-transplant anatomic bank or other donee for purposes of education
    56  or research.

        A. 7800--A                          5

     1    § 2. This act shall take effect immediately.

     2                                   PART B

     3    Section  1. Section 4301 of the public health law, as amended by chap-
     4  ter 348 of the laws of 2009, subdivision 1 as amended by chapter 248  of
     5  the laws of 2016, is amended to read as follows:
     6    §  4301. Persons who may execute an anatomical gift.  1. (a) Any indi-
     7  vidual of sound mind and eighteen years of age or more may [give all  or
     8  any part of his or her body] make an anatomical gift to take effect upon
     9  their death for any purpose specified in section forty-three hundred two
    10  of  this  article, [the gift to take effect upon death] limit an anatom-
    11  ical gift to one or more of those purposes, or refuse to make an anatom-
    12  ical gift. In any case where the donor has a properly executed [an organ
    13  donor card, driver's license authorization to make an  anatomical  gift,
    14  pursuant  to  paragraph  (a)  of subdivision one of section five hundred
    15  four of the vehicle and traffic law, registered in the  New  York  state
    16  organ and tissue donor registry under section forty-three hundred ten of
    17  this  article, or has otherwise given written authorization for organ or
    18  tissue donation,] document of gift authorization for donation shall  not
    19  be  rescinded  [by an objection by a member of any of the classes speci-
    20  fied in paragraphs (a) through (h) of subdivision two of this  section,]
    21  or  amended  by  any  other  person except upon a showing that the donor
    22  revoked the authorization pursuant to section forty-three  hundred  five
    23  of this article.
    24    (b)  Any  person who is sixteen or seventeen years of age and of sound
    25  mind may [give all or any part of his or her body]  make  an  anatomical
    26  gift  to  take  effect  upon  their  death  for any purpose specified in
    27  section forty-three hundred two of  this  article,  [the  gift  to  take
    28  effect  upon  death]  limit  an  anatomical gift to one or more of those
    29  purposes, or refuse to make an anatomical gift. In any  case  where  the
    30  donor  has  a  properly  executed [an organ donor card, driver's license
    31  authorization to make an anatomical gift, pursuant to paragraph  (a)  of
    32  subdivision  one of section five hundred four of the vehicle and traffic
    33  law, or has otherwise given written authorization for  organ  or  tissue
    34  donation] document of gift, notice of such gift shall be provided to the
    35  donor's parents or [legal] guardians, and authorization for donation may
    36  be  rescinded or amended by an objection by a parent or [legal] guardian
    37  of the donor at the time of death and prior to the recovery of any organ
    38  or tissue if the donor is less than eighteen years of age. An anatomical
    39  gift made by an individual more than sixteen years of age but less  than
    40  eighteen  shall  otherwise  not be rescinded, except upon a showing that
    41  the donor revoked the  authorization  pursuant  to  section  forty-three
    42  hundred  five  of this article. Upon the donor reaching the age of eigh-
    43  teen, the donor's consent to donate his or her organs or tissue shall be
    44  regarded as consent for authorization to make an anatomical gift  pursu-
    45  ant to paragraph (a) of this subdivision.
    46    (c) In the absence of an express, contrary indication by the donor, an
    47  anatomical gift of a part is neither a refusal to give other parts nor a
    48  limitation  on  an individual's ability to make an anatomical gift under
    49  subdivision two of this section.
    50    2. [Any of the following persons, in the  order  of  priority  stated,
    51  may,  when  persons in prior classes are not reasonably available, will-
    52  ing, and able to act, at the time of death, and in the absence of actual
    53  notice of contrary indications by the  decedent,  or  actual  notice  of
    54  opposition  by  a  member  of the same class or prior class specified in

        A. 7800--A                          6

     1  paragraph (a), (b), (c), (d), (e), (f), (g) or (h) of this  subdivision,
     2  or  reason  to  believe  that]  (a) In the absence of a gift made by the
     3  donor under subdivision one of this section, and in the absence of actu-
     4  al  notice  of contrary indications by the decedent, including religious
     5  or moral objections, an anatomical gift [is contrary to  the  decedent's
     6  religious or moral beliefs, give all or any part] of the decedent's body
     7  may  be  made  by  any member of the following classes of persons who is
     8  reasonably available, in the order of priority listed, for  any  purpose
     9  specified in section forty-three hundred two of this article:
    10    [(a)]  (i)  the  person designated as the decedent's health care agent
    11  under article twenty-nine-C of this  chapter,  subject  to  any  written
    12  statement in the health care proxy form,
    13    [(b)]  (ii) the person designated as the decedent's agent in a written
    14  instrument under article forty-two of this chapter, subject to any writ-
    15  ten statement in the written instrument,
    16    [(c)] (iii) the spouse, if not legally separated from the patient,  or
    17  the domestic partner,
    18    [(d)] (iv) a son or daughter eighteen years of age or older,
    19    [(e)] (v) either parent,
    20    [(f)] (vi) a brother or sister eighteen years of age or older,
    21    [(g)] (vii) an adult grandchild of the decedent,
    22    (viii) a grandparent of the decedent,
    23    (ix)  a  guardian  of the person of the decedent at the time of his or
    24  her death, or
    25    [(h)] (x) any other person  authorized  or  under  the  obligation  to
    26  dispose of the body.
    27    (b) If there is more than one member of a class listed in subparagraph
    28  (iv),  (vi), (vii), or (viii) of paragraph (a) of this subdivision enti-
    29  tled to make an anatomical gift, an anatomical gift may  be  made  by  a
    30  member  of  the class unless that member or person knows of an objection
    31  by another member of the class. If an objection is known, the  gift  may
    32  be  made  only by a majority of the members of the class who are reason-
    33  ably available.
    34    3. [For the purposes of this  section,  "reasonably  available"  means
    35  that  a person to be contacted can be contacted without undue effort and
    36  willing and able to act in a  timely  manner  consistent  with  existing
    37  medical criteria necessary for the making of an anatomical gift.
    38    4. For the purposes of this section, "domestic partner" means a person
    39  who, with respect to another person:
    40    (a) is formally a party in a domestic partnership or similar relation-
    41  ship  with  the  other  person, entered into pursuant to the laws of the
    42  United States or any state, local or foreign jurisdiction, or registered
    43  as the domestic partner of the person with any  registry  maintained  by
    44  the  employer  of  either  party  or any state, municipality, or foreign
    45  jurisdiction; or
    46    (b) is formally recognized as a beneficiary or  covered  person  under
    47  the other person's employment benefits or health insurance; or
    48    (c)  is  dependent  or mutually interdependent on the other person for
    49  support, as evidenced by the totality of the circumstances indicating  a
    50  mutual  intent  to  be  domestic  partners including but not limited to:
    51  common ownership or joint leasing of real or personal  property;  common
    52  householding,  shared  income  or  shared  expenses; children in common;
    53  signs of intent to marry or become domestic partners under paragraph (a)
    54  or (b) of this subdivision; or the length of the  personal  relationship
    55  of the persons.

        A. 7800--A                          7

     1    Each  party  to  a  domestic partnership shall be considered to be the
     2  domestic partner of  the  other  party.  "Domestic  partner"  shall  not
     3  include a person who is related to the other person by blood in a manner
     4  that would bar marriage to the other person in New York state. "Domestic
     5  partner"  shall  also  not  include any person who is less than eighteen
     6  years of age or who is the adopted child of the other person or  who  is
     7  related  by  blood in a manner that would bar marriage in New York state
     8  to a person who is the lawful spouse of the other person.] An anatomical
     9  gift may not be made by a person  listed  in  subdivision  two  of  this
    10  section if:
    11    (a) a person in a prior class is reasonably available;
    12    (b) the person proposing to make an anatomical gift knows of a refusal
    13  or  contrary  indications  by the decedent, including that an anatomical
    14  gift is contrary to the decedent's religious or moral beliefs.
    15    4. Any gift by a person designated in subdivision two of this  section
    16  shall  be by a document signed by him or her or made by his or her tele-
    17  graphic, recorded telephonic, or other recorded message. Where a gift is
    18  made under this subdivision, either:   (a) the authorizing  party  shall
    19  indicate  in the document or message that he or she has no actual notice
    20  of contrary indications by the decedent and no reason to believe that an
    21  anatomical gift  is  contrary  to  the  decedent's  religious  or  moral
    22  beliefs;  or  (b) an agent of the federally designated organ procurement
    23  organization or of the donee shall make reasonable efforts to inquire of
    24  the authorizing party or otherwise determine that the authorizing  party
    25  has  no  actual  notice  of  contrary indications by the decedent and no
    26  reason to believe that an anatomical gift is contrary to the  decedent's
    27  religious or moral beliefs.
    28    5.  The  donee  shall  not accept the gift under the following circum-
    29  stances:
    30    (a) the donee has actual notice of contrary indication  by  the  dece-
    31  dent;
    32    (b)  where  [the  donor has not properly executed an organ donor card,
    33  driver's license authorization to make] an anatomical gift[, pursuant to
    34  paragraph (a) of subdivision one of section five  hundred  four  of  the
    35  vehicle  and  traffic  law,  registered  in the New York state organ and
    36  tissue donor registry under section  forty-three  hundred  ten  of  this
    37  article,  or  otherwise  given written authorization for organ or tissue
    38  donation, or has revoked any such authorization, and the gift is opposed
    39  by a person or persons in the highest priority available of the  classes
    40  specified  in  paragraph  (a),  (b),  (c),  (d), (e), (f), (g) or (h) of
    41  subdivision two of] is not properly made pursuant to this section; or
    42    (c) the donee has reason to believe that an anatomical gift is contra-
    43  ry to the decedent's religious or moral beliefs.
    44    6. A gift of all or part of a body authorizes any  examination  neces-
    45  sary to assure medical acceptability of gift for the purposes intended.
    46    7.  The  rights  of the donee created by the gift are paramount to the
    47  rights of others except as provided by section forty-three hundred eight
    48  of this article.
    49    8. The person who documents the making, amending  or  revoking  of  an
    50  anatomical  gift, acting reasonably and in good faith in accordance with
    51  this article, may accept an anatomical gift under this article made by a
    52  person who represents that he or she  is  entitled  to  consent  to  the
    53  donation.
    54    § 2. Section 4305 of the public health law, as added by chapter 466 of
    55  the laws of 1970, is amended to read as follows:

        A. 7800--A                          8

     1    §  4305. [Revocation] Amendments or revocation of the gift. 1. [If the
     2  will, card, or other document or executed copy thereof has  been  deliv-
     3  ered  to  a  specified donee, the donor] An individual who has created a
     4  document of gift may amend or revoke the gift by:
     5    (a) [the execution and delivery to the donee of a signed statement,] a
     6  record signed by:
     7    (i) the donor;
     8    (ii) another person authorized to make the anatomical gift; or
     9    (iii) another individual acting at the direction of the donor or other
    10  person  authorized  to make the anatomical gift if those individuals are
    11  physically unable to sign; or
    12    (b) an oral statement of  revocation  made  in  the  presence  of  two
    13  persons,  [communicated  to the donee,] at least one of whom is a disin-
    14  terested witness; or
    15    (c) a later-executed document of gift that amends or revokes a  previ-
    16  ous anatomical gift or portion of an anatomical gift either expressly or
    17  by inconsistency; or
    18    (d)  a  statement  during a terminal illness or injury addressed to an
    19  attending physician and communicated to the donee[,]; or
    20    [(d)] (e) a signed card or document, found on  [his]  the  prospective
    21  donor's person or in [his] the prospective donor's effects; or
    22    (f)  the  individual's  will,  whether  or not the will is admitted to
    23  probate or invalidated after the individual's death.
    24    2. (a) Subject to paragraphs (b) and (c) of this subdivision, an indi-
    25  vidual authorized to make an anatomical gift pursuant to subdivision two
    26  of section forty-three hundred one of this article may revoke  or  amend
    27  such gift by:
    28    (i) a record signed by the donor; or
    29    (ii)  an  oral  statement  of  revocation  made in the presence of two
    30  persons, at least one of whom is a disinterested witness; or
    31    (iii) a later-executed document of  gift  that  amends  or  revokes  a
    32  previous  anatomical  gift  or  portion  of  an  anatomical gift, either
    33  expressly or by inconsistency.
    34    (b) If more than one member of a class listed  in  subparagraph  (iv),
    35  (vi),  (vii),  or  (viii) of paragraph (a) of subdivision two of section
    36  forty-three hundred one of this article is reasonably available, a  gift
    37  made  pursuant  to subdivision two of section forty-three hundred one of
    38  this article may be amended only if a majority of the reasonably  avail-
    39  able  members  agree  to  the amending of the gift, or revoked only if a
    40  majority of the reasonably available members agree to  the  revoking  of
    41  the  gift  or  if  they  are equally divided as to whether to revoke the
    42  gift.
    43    (c) A revocation is effective only if, before  an  incision  has  been
    44  made  to  remove  a part from the donor's body or before invasive proce-
    45  dures have begun to prepare the recipient, the procurement organization,
    46  transplant hospital, or physician or technician knows of the revocation.
    47    3. Any document of gift [which has not been delivered  to  the  donee]
    48  may  be  revoked in the manner set out in subdivision one or two of this
    49  section or by destruction, cancellation, or mutilation of  the  document
    50  and all executed copies thereof.
    51    [3.]  4.  Any  gift  made  by  a will may be revoked or amended in the
    52  manner provided for revocation or amendment of wills or as  provided  in
    53  subdivision one of this section.
    54    5.  In  the absence of contrary indications by the donor, a revocation
    55  or amendment of an anatomical gift is not  a  refusal  to  make  another
    56  anatomical gift, either by the prospective donor or another person spec-

        A. 7800--A                          9

     1  ified  in  subdivision  two  of  section forty-three hundred one of this
     2  article.
     3    § 3. Article 43-A of the public health law is REPEALED.
     4    §  3-a.  Subdivision  5  of  section  4303 of the public health law is
     5  REPEALED.
     6    § 4. This act shall take effect on the one hundred eightieth day after
     7  it shall have become a law. Effective immediately, the addition,  amend-
     8  ment and/or repeal of any rule or regulation necessary for the implemen-
     9  tation  of  this act on its effective date are authorized to be made and
    10  completed on or before such effective date.

    11                                   PART C

    12    Section 1. Section 4302 of the public health law is REPEALED and a new
    13  section 4302 is added to read as follows:
    14    § 4302. Uses and dispositions of anatomical gifts.  1. All  anatomical
    15  gifts made under this article may be made to the following persons named
    16  in the document of gift:
    17    (a)  a  hospital; accredited medical school, dental school, college or
    18  university;  organ  procurement  organization;  non-transplant  anatomic
    19  bank; or other appropriate person, for research or education;
    20    (b)  subject  to the provisions of subdivision two of this section, an
    21  individual designated by the person making the anatomical  gift  if  the
    22  individual  is  the  recipient of that part; if an anatomical gift to an
    23  individual under this paragraph cannot be transplanted into the individ-
    24  ual, the part passes in accordance with subdivision six of this  section
    25  in  the  absence  of  an express, contrary indication by the authorizing
    26  party making the anatomical gift; or
    27    (c) an eye bank or tissue bank.
    28    2. If an anatomical gift of one or more specific parts or of all parts
    29  is made in a document of gift that does not name a person  described  in
    30  subdivision one of this section, but identifies the purpose for which an
    31  anatomical gift may be used, the following rules apply:
    32    (a)  If  the  part is an eye and the gift is for the purpose of trans-
    33  plantation or therapy, the gift passes to the appropriate eye bank.
    34    (b) If the part is tissue and the gift is for the  purpose  of  trans-
    35  plantation or therapy, the gift passes to the appropriate tissue bank.
    36    (c)  If the part is an organ and the gift is for the purpose of trans-
    37  plantation or therapy, the gift passes to the appropriate organ procure-
    38  ment organization as custodian of the organ.
    39    (d) If the part is an organ, eye, or tissue and the gift  is  for  the
    40  purpose  of  research  or  education, the gift passes to the appropriate
    41  procurement organization.
    42    3. For the purposes of subdivision two of this section,  if  there  is
    43  more than one purpose of an anatomical gift set forth in the document of
    44  gift  but  the purposes are not set forth in any priority, the gift must
    45  be used for transplantation or therapy, if suitable. If the gift  cannot
    46  be  used  for  transplantation  or  therapy,  the  gift  may be used for
    47  research or education.
    48    4. If an anatomical gift of one or more specific parts is  made  in  a
    49  document  of  gift  that does not name a person described in subdivision
    50  one of this section and does not identify the purpose of the  gift,  the
    51  gift may be used only for transplantation or therapy, and the gift pass-
    52  es in accordance with subdivision six of this section.
    53    5.  If  a  document of gift specifies only a general intent to make an
    54  anatomical gift by words such as "donor", "organ donor" or "body donor",

        A. 7800--A                         10

     1  or by a symbol or statement of similar import, the gift may be used only
     2  for transplantation or therapy, and the gift passes in  accordance  with
     3  subdivision six of this section.
     4    6. For purposes of subdivisions four, five and paragraph (b) of subdi-
     5  vision one of this section, the following rules apply:
     6    (a)  If  the  part  is  an eye, the gift passes to the appropriate eye
     7  bank.
     8    (b) If the part is tissue, the gift passes to the  appropriate  tissue
     9  bank.
    10    (c)  If the part is an organ, the gift passes to the appropriate organ
    11  procurement organization as custodian of the organ.
    12    7. An anatomical gift of an  organ  for  transplantation  or  therapy,
    13  other  than an anatomical gift under paragraph (b) of subdivision one of
    14  this section, passes to the organ procurement organization as  custodian
    15  of the organ.
    16    8.  If  a potential donor has been referred to a procurement organiza-
    17  tion or tissue bank pursuant to state or federal law, and  the  procure-
    18  ment  organization  has determined that the gift is medically unsuitable
    19  for transplant, or to the extent that a non-transplant  anatomical  gift
    20  may  still be honored after a gift has been made pursuant to a supersed-
    21  ing document of gift,  then  the  procurement  organization  shall  make
    22  reasonable  efforts to determine whether the donor has previously made a
    23  gift of his or her body or parts for  education  or  research,  and  the
    24  procurement  organization  informed  of  such gift shall notify the non-
    25  transplant anatomic bank of the gift consistent with the donor's intent.
    26    9. If an anatomical gift does not pass pursuant to  subdivisions  one,
    27  two,  three,  four, five, six or seven of this section or the decedent's
    28  body or part is not used  for  transplantation,  therapy,  research,  or
    29  education,  custody of the body or part passes to the person under obli-
    30  gation to dispose of the body or part.
    31    10. A person may not accept an anatomical gift  if  the  person  knows
    32  that the gift was not effectively made under section forty-three hundred
    33  one  or  forty-three hundred five of this article or if the person knows
    34  that the decedent made a refusal under section forty-three  hundred  one
    35  of  this article that was not revoked. For purposes of this subdivision,
    36  if a person knows that an anatomical gift was  made  on  a  document  of
    37  gift, the person is deemed to know of any amendment or revocation of the
    38  gift  or  any refusal to make an anatomical gift on the same document of
    39  gift.
    40    11. Except as otherwise provided in paragraph (b) of  subdivision  one
    41  of  this  section,  nothing  in  this  section affects the allocation of
    42  organs for transplantation or therapy.
    43    § 2. This act shall take effect on the one hundred eightieth day after
    44  it shall have become a law.  Effective immediately, the addition, amend-
    45  ment and/or repeal of any rule or regulation necessary for the implemen-
    46  tation of this act on its effective date are authorized to be  made  and
    47  completed on or before such effective date.

    48                                   PART D

    49    Section  1. Section 4304 of the public health law, as added by chapter
    50  466 of the laws of 1970, is amended to read as follows:
    51    § 4304. Delivery of document of gift. If the gift is made by the donor
    52  to a specified donee, the will, card or other document or [an  executed]
    53  a copy thereof, may be delivered to him or her to expedite the appropri-
    54  ate  procedures  immediately after death; however delivery is not neces-

        A. 7800--A                         11

     1  sary to the validity of the gift. [The will, card or other document,  or
     2  an  executed copy thereof, may be deposited in any hospital, bank, stor-
     3  age facility or registry office that accepts it for safekeeping  or  for
     4  facilitation  of  procedures  after  death.] On request of an interested
     5  party upon or after the donor's death, the person  in  possession  shall
     6  produce the document for examination.
     7    § 2. This act shall take effect immediately.

     8                                   PART E

     9    Section  1.  Subdivisions  1,  3  and  4 of section 4306 of the public
    10  health law, subdivisions 1 and 3 as added by chapter 466 of the laws  of
    11  1970, and subdivision 4 as added by chapter 589 of the laws of 1990, are
    12  amended to read as follows:
    13    1.  The  donee  may  accept or reject the gift. If the donee accepts a
    14  gift of the entire body, he or she may, subject  to  the  terms  of  the
    15  gift,  authorize  embalming and the use of the body in funeral services.
    16  If the gift is of a part of the body, the donee upon the  death  of  the
    17  donor  and  prior to embalming, may cause the part to be removed without
    18  unnecessary mutilation. After  removal  of  the  part,  custody  of  the
    19  remainder  of  the  body  vests in the surviving spouse, next of kin, or
    20  other persons under obligation to dispose of the body.
    21    3. (a) A person who acts in good faith in accord  with  the  terms  of
    22  this  article or with the anatomical gift laws of another [state] juris-
    23  diction is not liable for damages in any  civil  action  or  subject  to
    24  prosecution in any criminal proceeding for his or her act.
    25    (b)  A  person  who  documents  the making, amending or revoking of an
    26  anatomical gift, acting reasonably and in good faith in accordance  with
    27  this article, may accept an anatomical gift under this article made by a
    28  person  who  represents  that  he  or  she is entitled to consent to the
    29  donation.
    30    (c) An entity under section forty-three  hundred  two  or  forty-three
    31  hundred  ten  of this article or a health care professional, or an agent
    32  or  employee  thereof,  who  or  which  documents,  records,   recovers,
    33  procures, obtains, or utilizes an organ or tissue in reasonable and good
    34  faith  reliance  on information provided to or contained in the New York
    35  state donate life registry shall not be liable in any civil or  criminal
    36  action or proceeding for action based on such reliance.
    37    4.  [At  the time of acceptance of the gift, when it is known that the
    38  donation will be used for other than transplantation purposes, the donee
    39  if requested by the donor or the donor's next of kin  shall  advise  the
    40  donor  or  the donor's next of kin of the body parts to be utilized, the
    41  uses to which the body parts may be  put,  whether  body  parts  may  be
    42  transferred  to other facilities or institutions and plans for the ulti-
    43  mate disposition of all body parts if the donor has  not  specified  the
    44  ultimate  disposition.]  Any employee or agent of a federally designated
    45  organ procurement organization, eye bank or tissue bank acting  pursuant
    46  to this article shall be held to the same standard of confidentiality as
    47  that imposed on employees of a hospital.
    48    §  2.  This  act shall take effect immediately and shall apply only to
    49  acts occurring on or after such effective date.  Effective  immediately,
    50  the  addition,  amendment and/or repeal of any rule or regulation neces-
    51  sary for the implementation of  this  act  on  its  effective  date  are
    52  authorized to be made and completed on or before such effective date.

    53                                   PART F

        A. 7800--A                         12

     1    Section  1.  The  public health law is amended by adding a new section
     2  4306-a to read as follows:
     3    § 4306-a. Advanced directives and health care proxies. 1. If a patient
     4  in  a  hospital  has  a  declaration or advance health care directive or
     5  proxy document pursuant to article twenty-nine-C of  this  chapter,  and
     6  terms  of  the declaration, directive or proxy document concerning life-
     7  sustaining treatment are in conflict with the express or  implied  terms
     8  of  a  potential  anatomical  gift  with regard to the administration of
     9  measures necessary to ensure the medical suitability of a part for tran-
    10  splantation or therapy, the prospective donor's attending physician  and
    11  the prospective donor shall confer to resolve the conflict.
    12    2.  If  such prospective donor is incapable of resolving the conflict,
    13  and the patient in such declaration, directive, or  proxy  document  did
    14  not  expressly  reject  being a donor, then the health care proxy acting
    15  under the prospective donor's declaration, directive, or  proxy  or,  if
    16  none,  a surrogate authorized to make health care decisions on behalf of
    17  the patient, in accordance with the provisions of article twenty-nine-CC
    18  of this chapter, shall act for the patient to resolve the conflict.
    19    3. Such conflict must be resolved expeditiously. Information  relevant
    20  to  the  resolution of the conflict may be obtained from the appropriate
    21  procurement organization and any other  person  authorized  to  make  an
    22  anatomical  gift  for the prospective donor described in subdivision two
    23  of section forty-three hundred one of this article. Before resolution of
    24  the conflict, measures necessary to ensure the  medical  suitability  of
    25  the  part may not be withheld or withdrawn from the patient if withhold-
    26  ing or withdrawing the measures is not  contraindicated  by  appropriate
    27  end-of-life care.
    28    §  2.  The public health law is amended by adding a new section 4306-b
    29  to read as follows:
    30    §  4306-b.  Withdrawal  of  life-sustaining  treatment.  This  section
    31  applies  in  cases  where a prospective donor who has made an anatomical
    32  gift or whose donation status has not been ascertained is in a hospital.
    33  The hospital shall not withdraw any measures that are necessary to main-
    34  tain the medical suitability of the part until the procurement organiza-
    35  tion has had the opportunity to advise the  applicable  persons  as  set
    36  forth  in  section forty-three hundred one of this article of the option
    37  to make an anatomical gift, has documented or acted upon that  decision,
    38  or has ascertained that the individual expressed a contrary intent.  The
    39  procurement  organization  shall  act  expeditiously with respect to its
    40  responsibilities under this section.
    41    § 3. This act shall take effect on the one hundred eightieth day after
    42  it shall have become a law. Effective immediately, the addition,  amend-
    43  ment and/or repeal of any rule or regulation necessary for the implemen-
    44  tation  of  this act on its effective date are authorized to be made and
    45  completed on or before such effective date.

    46                                   PART G

    47    Section 1. Subdivision 1 of section 4307 of the public health law,  as
    48  amended  by  chapter  362  of  the  laws  of 2009, is amended to read as
    49  follows:
    50    1. It shall be unlawful for any person to knowingly acquire,  receive,
    51  or  otherwise transfer for valuable consideration any [human organ] part
    52  for use in human transplantation. [The term human organ means the  human
    53  kidney,  liver,  heart,  lung, bone marrow, and any other human organ or
    54  tissue as may be  designated  by  the  commissioner  but  shall  exclude

        A. 7800--A                         13

     1  blood.]  The  term "valuable consideration" does not include the reason-
     2  able payments associated with the removal, transportation, implantation,
     3  processing, preservation, quality  control,  and  storage  of  a  [human
     4  organ]  part or the expenses of travel, housing, and lost wages incurred
     5  by the donor of a human organ in connection with  the  donation  of  the
     6  organ  or  human  paired  organ  donation.  Any person who violates this
     7  section shall be guilty of a class E felony.
     8    § 2. This act shall take effect immediately.
     9    § 4. 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    §  5.  This  act shall take effect immediately provided, however, that
    17  the applicable effective date of Parts A through G of this act shall  be
    18  as specifically set forth in the last section of such Parts.
feedback