S04488 Summary:

BILL NOS04488
 
SAME ASSAME AS A06966
 
SPONSORDUANE
 
COSPNSROPPENHEIMER, VOLKER
 
MLTSPNSR
 
Rpld Art 43-A, rpld & add Art 43 SS4300 - 4320, amd SS4201, 4221, 4222 & 4364, Pub Health L; amd SS502 & 504, V & T L
 
Creates the anatomical gift act; repeals current provisions; enacts procedures for making anatomical gifts; widens the class of individuals authorized to make a gift after the donor's death; recognizes a healthcare agent for consent purposes; allows recovery organizations to work with individuals who are "reasonably available" to make donation decisions.
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S04488 Actions:

BILL NOS04488
 
04/24/2009REFERRED TO HEALTH
01/06/2010REFERRED TO HEALTH
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S04488 Floor Votes:

There are no votes for this bill in this legislative session.
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S04488 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          4488
 
                               2009-2010 Regular Sessions
 
                    IN SENATE
 
                                     April 24, 2009
                                       ___________
 
        Introduced  by  Sen.  DUANE  -- read twice and ordered printed, and when
          printed to be committed to the Committee on Health
 
        AN ACT to amend the public health  law,  in  relation  to  creating  the
          anatomical  gift  act;  to amend the public health law and the vehicle
          and traffic law, in relation to making  certain  technical  amendments

          thereto;  and  to repeal articles 43 and 43-A of the public health law
          relating to anatomical gifts
 
          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:
 
     1    Section 1. This act shall be known and may be cited as the "Anatomical
     2  Gift Act".
     3    §  2. Articles 43 and 43-A of the public health law are REPEALED and a
     4  new article 43 is added to read as follows:
     5                                 ARTICLE 43
     6                              ANATOMICAL GIFTS
     7  Section 4300. Definitions.
     8          4301. Application.
     9          4302. Persons who may make an  anatomical  gift  before  donor's
    10                  death.
    11          4303. Manner of making an anatomical gift before donor's death.

    12          4304. Amending  or  revoking  an  anatomical gift before donor's
    13                  death.
    14          4305. Preclusive effect of anatomical gift, amendment or revoca-
    15                  tion.
    16          4306. Persons who make an anatomical gift of a  decedent's  body
    17                  or part.
    18          4307. Manner  of making, amending or revoking an anatomical gift
    19                  of a decedent's body or part.
    20          4308. Persons who may receive an anatomical gift; purpose of  an
    21                  anatomical gift.
    22          4309. Search and notification.
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.

                                                                   LBD00378-02-9

        S. 4488                             2
 
     1          4310. Delivery of document of gift; right to examine.
     2          4311. Rights and duties of procurement organization and others.
     3          4312. Coordination of procurement and use.
     4          4313. Sale or purchase of parts prohibited.
     5          4314. Other prohibited acts.
     6          4315. Immunity.
     7          4316. Law governing validity.
     8          4317. New York State donate life registry.
     9          4318. Effect  of  anatomical  gift on advance health-care direc-
    10                  tive.
    11          4319. Cooperation between the coroner or  medical  examiner  and

    12                  procurement organization.
    13          4320. Release of records.
    14    §  4300.  Definitions.  As  used  in this article, the following terms
    15  shall have the following meanings:
    16    1. "Adult" means an individual who is at least eighteen years of age.
    17    2. "Agent" means an individual:
    18    (a) authorized to make health-care decisions on the principal's behalf
    19  by a power of attorney for health care; or
    20    (b) expressly authorized to make an anatomical gift on the principal's
    21  behalf by any other record signed by the principal.
    22    3. "Anatomical gift" means a donation of all or part of a  human  body
    23  to  take  effect after the donor's death for the purpose of transplanta-

    24  tion, therapy, research, or education.
    25    4. "Decedent" means a deceased individual whose body or part is or may
    26  be the source of an anatomical  gift.  The  term  includes  a  stillborn
    27  infant and a fetus.
    28    5.  "Disinterested  witness"  means  a  witness other than the spouse,
    29  child, parent, sibling, grandchild,  grandparent,  or  guardian  of  the
    30  individual  who  makes, amends or revokes an anatomical gift, or another
    31  adult who exhibited special care and concern  for  the  individual.  The
    32  term  does  not  include a person to which an anatomical gift could pass
    33  under section forty-three hundred eight of this article.
    34    6. "Document of gift" means a donor card or other record used to  make

    35  an  anatomical  gift. The term includes a statement or symbol on a driv-
    36  er's license, identification card, or donor registry.
    37    7. "Donor" means an individual whose body or part is the subject of an
    38  anatomical gift.
    39    8. "Donor registry" means a database that contains records of  anatom-
    40  ical gifts and amendments to or revocations of anatomical gifts.
    41    9.  "Eye  bank"  means a person that is licensed, accredited, or regu-
    42  lated under federal or state law to engage in the  recovery,  screening,
    43  testing,  processing, storage, or distribution of human eyes or portions
    44  of human eyes.
    45    10. "Guardian" means a person appointed by a court to  make  decisions
    46  regarding  the  support, care, education, health, or welfare of an indi-

    47  vidual. The term does not include a guardian ad litem.
    48    11. "Hospital" means a  hospital  licensed,  accredited,  or  approved
    49  under  the  laws  of  any  state and includes a hospital operated by the
    50  United States government, a state, or a  subdivision  thereof,  although
    51  not required to be licensed under state laws.
    52    12.  "Identification  card" means an identification card issued by the
    53  department of motor vehicles.
    54    13. "Minor" means an individual who is under eighteen years of age.

        S. 4488                             3
 
     1    14. "Organ procurement organization" means a person designated by  the
     2  secretary  of  the United States department of health and human services

     3  as an organ procurement organization.
     4    15. "Parent" means a parent whose parental rights have not been termi-
     5  nated.
     6    16.  "Part"  of  a  body  means an organ, an eye, or tissue of a human
     7  being. The term does not include the whole  body,  and  "part"  includes
     8  "parts".
     9    17. "Person" means an individual, corporation, business trust, estate,
    10  trust,   partnership,  limited  liability  company,  association,  joint
    11  venture, public corporation,  government  or  governmental  subdivision,
    12  agency, or instrumentality, or any other legal or commercial entity.
    13    18. "Physician" means an individual licensed or authorized to practice
    14  medicine under the laws of any state.

    15    19.  "Procurement  organization"  means an eye bank, organ procurement
    16  organization, or tissue bank.
    17    20. "Prospective donor" means an individual who is dead or near  death
    18  and  has  been  determined  by a procurement organization to have a part
    19  that could be medically suitable for transplantation, therapy, research,
    20  or education.
    21    21. "Reasonably available" means able to be contacted by a procurement
    22  organization without undue effort and willing and able to act in a time-
    23  ly manner consistent with existing medical criteria  necessary  for  the
    24  making of an anatomical gift.
    25    22.  "Recipient" means an individual into whose body a decedent's part
    26  has been or is intended to be transplanted.

    27    23. "Record" means information that is inscribed on a tangible  medium
    28  or that is stored in an electronic or other medium and is retrievable in
    29  perceivable form.
    30    24.  "Sign"  means, with the present intent to authenticate or adopt a
    31  record:
    32    (a) to execute or adopt a tangible symbol; or
    33    (b) to attach to or logically associate with the record an  electronic
    34  symbol, sound, or process.
    35    25. "State" means a state of the United States, the District of Colum-
    36  bia,  Puerto Rico, the United States Virgin Islands, or any territory or
    37  insular possession subject to the jurisdiction of the United States.
    38    26. "Technician" means an individual determined  to  be  qualified  to

    39  remove or process parts by an appropriate organization that is licensed,
    40  accredited,  or  regulated under federal or state law. The term includes
    41  an enucleator.
    42    27. "Tissue" means a portion of the human body other than an organ  or
    43  an eye.  The term does not include blood unless the blood is donated for
    44  the purpose of research or education.
    45    28.  "Tissue  bank"  means  a  person that is licensed, accredited, or
    46  regulated under federal or state law to engage in the recovery,  screen-
    47  ing, testing, processing, storage, or distribution of tissue.
    48    29. "Transplant hospital" means a hospital that furnishes organ trans-
    49  plants  and  other  medical and surgical specialty services required for
    50  the care of transplant patients.

    51    § 4301. Application. 1. This article applies to an anatomical gift  or
    52  amendment  to,  revocation  of,  or  refusal to make an anatomical gift,
    53  whenever made.
    54    2. The provisions of this article shall not be deemed to supersede  or
    55  affect  the  provisions  of  the public health law relating to the func-

        S. 4488                             4
 
     1  tions, powers and duties of coroners, coroner's  physicians  or  medical
     2  examiners.
     3    §  4302. Persons who may make an anatomical gift before donor's death.
     4  Pursuant to section forty-three hundred five of this article, an anatom-
     5  ical gift of a donor's body or part may be made during the life  of  the

     6  donor  for  the purpose of transplantation, therapy, research, or educa-
     7  tion in the manner provided in section forty-three hundred three of this
     8  article by:
     9    1. the donor, if the donor is an adult or if the donor is a minor  and
    10  is:
    11    (a) emancipated; or
    12    (b) authorized under state law to apply for a driver's license because
    13  the donor is at least sixteen years of age;
    14    2. an agent of the donor, unless the power of attorney for health care
    15  or other record prohibits the agent from making an anatomical gift;
    16    3. a parent of the donor, if the donor is an unemancipated minor; or
    17    4. the donor's guardian.
    18    § 4303. Manner of making an anatomical gift before donor's death. 1. A

    19  donor may make an anatomical gift:
    20    (a) by authorizing a statement or symbol indicating that the donor has
    21  made  an anatomical gift to be imprinted on the donor's driver's license
    22  or identification card, pursuant to section forty-three  hundred  seven-
    23  teen of this article;
    24    (b) in a will;
    25    (c)  during  a terminal illness or injury of the donor, by any form of
    26  communication addressed to at least two adults, at least one of whom  is
    27  a disinterested witness; or
    28    (d) as provided in subdivision two of this section.
    29    2. A donor or other person authorized to make an anatomical gift under
    30  section  forty-three  hundred  two  of this article may make a gift by a

    31  donor card or other record signed by the donor or  other  person  making
    32  the  gift  or  by authorizing that a statement or symbol indicating that
    33  the donor has made an anatomical gift be included on a  donor  registry.
    34  If  the donor or other person is physically unable to sign a record, the
    35  record may be signed by another individual at the direction of the donor
    36  or other person and shall:
    37    (a) be witnessed by at least two adults, at least one  of  whom  is  a
    38  disinterested  witness,  who  have signed at the request of the donor or
    39  the other person; and
    40    (b) state that it has been signed and witnessed as provided  in  para-
    41  graph (a) of this subdivision.

    42    3.  Revocation,  suspension, expiration, or cancellation of a driver's
    43  license or identification card upon which an anatomical  gift  is  indi-
    44  cated does not invalidate the gift.
    45    4. An anatomical gift made by will takes effect upon the donor's death
    46  whether  or not the will is probated. Invalidation of the will after the
    47  donor's death does not invalidate the gift.
    48    § 4304. Amending or revoking an anatomical gift before donor's  death.
    49  1.    Pursuant  to  section  forty-three hundred five of this article, a
    50  donor or other person  authorized  to  make  an  anatomical  gift  under
    51  section  forty-three  hundred two of this article may amend or revoke an
    52  anatomical gift by:
    53    (a) a record signed by:

    54    (1) the donor;
    55    (2) the other person; or

        S. 4488                             5
 
     1    (3) subject to subdivision two of  this  section,  another  individual
     2  acting at the direction of the donor or the other person if the donor or
     3  other person is physically unable to sign; or
     4    (b)  a later-executed document of gift that amends or revokes a previ-
     5  ous anatomical gift or portion of an anatomical gift,  either  expressly
     6  or by inconsistency.
     7    2.  A record signed pursuant to subparagraph three of paragraph (a) of
     8  subdivision one of this section shall:
     9    (a) be witnessed by at least two adults, at least one  of  whom  is  a

    10  disinterested  witness,  who  have signed at the request of the donor or
    11  the other person; and
    12    (b) state that it has been signed and witnessed as provided  in  para-
    13  graph (a) of this subdivision.
    14    3.  Pursuant  to  section  forty-three  hundred six of this article, a
    15  donor or other person  authorized  to  make  an  anatomical  gift  under
    16  section forty-three hundred two of this article may revoke an anatomical
    17  gift  by the destruction or cancellation of the document of gift, or the
    18  portion of the document of gift used to make the gift, with  the  intent
    19  to revoke the gift.
    20    4. A donor may amend or revoke an anatomical gift that was not made in
    21  a  will by any form of communication during a terminal illness or injury

    22  addressed to at least two adults, at least one of whom  is  a  disinter-
    23  ested witness.
    24    5.  A donor who makes an anatomical gift in a will may amend or revoke
    25  the gift in the manner provided for amendment or revocation of wills  or
    26  as provided in subdivision one of this section.
    27    § 4305. Preclusive effect of anatomical gift, amendment or revocation.
    28  1. Except as otherwise provided in subdivision seven of this section and
    29  subject  to  subdivision  six  of  this  section,  in  the absence of an
    30  express, contrary indication by the donor, a person other than the donor
    31  is barred from making, amending, or revoking an  anatomical  gift  of  a
    32  donor's body or part if the donor made an anatomical gift of the donor's

    33  body  or part under section forty-three hundred three of this article or
    34  an amendment to an anatomical gift of the donor's  body  or  part  under
    35  section forty-three hundred four of this article.
    36    2.  A  donor's revocation of an anatomical gift of the donor's body or
    37  part under section forty-three hundred four of this  article  is  not  a
    38  refusal  and  shall  not  bar another person specified in section forty-
    39  three hundred two or section forty-three hundred  six  of  this  article
    40  from making an anatomical gift of the donor's body or part in accordance
    41  with the provisions of this article.
    42    3. If a person other than the donor makes an unrevoked anatomical gift
    43  of  the  donor's body or part under section forty-three hundred three of

    44  this article or an amendment to an anatomical gift of the  donor's  body
    45  or  part under section forty-three hundred four of this article, another
    46  person may not make, amend, or revoke the gift of the  donor's  body  or
    47  part under section forty-three hundred six of this article.
    48    4.  A revocation of an anatomical gift of a donor's body or part under
    49  section forty-three hundred four of this article by a person other  than
    50  the donor shall not bar another person from making an anatomical gift of
    51  the  body  or  part  under  section forty-three hundred three or section
    52  forty-three hundred seven of this article.
    53    5. In the absence of an express, contrary indication by the  donor  or

    54  other  person authorized to make an anatomical gift under section forty-
    55  three hundred two of this article, an  anatomical  gift  of  a  part  is
    56  neither a refusal to give another part nor a limitation on the making of

        S. 4488                             6
 
     1  an  anatomical  gift  of  another  part  at a later time by the donor or
     2  another person.
     3    6.  In  the absence of an express, contrary indication by the donor or
     4  other person authorized to make an anatomical gift under section  forty-
     5  three  hundred two of this article, an anatomical gift of a part for one
     6  or more of the purposes set forth in such section is not a limitation on
     7  the making of an anatomical gift of  the  part  for  any  of  the  other

     8  purposes  by  the  donor  or  any other person under section forty-three
     9  hundred three or forty-three hundred seven of this article.
    10    7. If a donor who is an unemancipated minor  dies,  a  parent  of  the
    11  donor,  who  is  reasonably available, may revoke or amend an anatomical
    12  gift of the donor's body or part.
    13    8. If an unemancipated minor who signed a refusal dies,  a  parent  of
    14  the minor who is reasonably available may revoke the minor's refusal.
    15    §  4306.  Persons  who make an anatomical gift of a decedent's body or
    16  part. 1.  Subject to subdivisions two and  three  of  this  section  and
    17  unless  barred  by  section forty-three hundred five of this article, an
    18  anatomical gift of a decedent's body or part for purpose of transplanta-

    19  tion, therapy, research, or education may be made by any member  of  the
    20  following  classes  of persons who is reasonably available, in the order
    21  of priority listed:
    22    (a) an agent of the decedent at the time of death who could have  made
    23  an  anatomical gift under subdivision two of section forty-three hundred
    24  two of this article immediately before the decedent's death;
    25    (b) the spouse or domestic partner of the decedent.  For  purposes  of
    26  this  article,  domestic  partner  shall  be  defined to be a person who
    27  satisfies the requirements contained in section forty-two hundred one of
    28  this chapter;
    29    (c) adult children of the decedent;
    30    (d) parents of the decedent;
    31    (e) adult siblings of the decedent;

    32    (f) adult grandchildren of the decedent;
    33    (g) grandparents of the decedent;
    34    (h) an adult who exhibited special care and concern for the decedent;
    35    (i) the persons who were acting as the guardian of the decedent at the
    36  time of death; and
    37    (j) any other person having the authority to dispose of the decedent's
    38  body, including a person named in a decedent's will, a commissioner of a
    39  local social services district, a coroner,  a  medical  examiner,  or  a
    40  hospital administrator.
    41    2.  If  there  is  more than one member of a class listed in paragraph
    42  (a), (c), (d), (e), (f), (g) or (i) of subdivision one of  this  section
    43  entitled to make an anatomical gift, an anatomical gift may be made by a

    44  member  of  the  class unless that member, or a person to which the gift
    45  may pass under section forty-three hundred eight of this article,  knows
    46  of  an  objection  by  another  member  of the class. If an objection is
    47  known, the gift may be made only by a majority of  the  members  of  the
    48  class who are reasonably available.
    49    3.  A  person  may  not make an anatomical gift if, at the time of the
    50  decedent's death, a person in a prior class  under  subdivision  one  is
    51  reasonably available to make or to object to the making of an anatomical
    52  gift.
    53    4.  A  person may not make an anatomical gift if the person knows of a
    54  record of the decedent's contrary indication or if the decedent is known

    55  to have moral or religious objections to the  making  of  an  anatomical
    56  gift.

        S. 4488                             7
 
     1    § 4307. Manner of making, amending or revoking an anatomical gift of a
     2  decedent's  body  or  part. 1. A person authorized to make an anatomical
     3  gift under section forty-three hundred six of this article may  make  an
     4  anatomical  gift  by  a document of gift signed by the person making the
     5  gift  or  by  that  person's  oral  communication that is electronically
     6  recorded or is contemporaneously reduced to a record and signed  by  the
     7  individual receiving the oral communication.
     8    2. Subject to subdivision three of this section, an anatomical gift by

     9  a  person authorized under section forty-three hundred six of this arti-
    10  cle may be amended or revoked orally or in a record by any member  of  a
    11  prior class who is reasonably available.  If more than one member of the
    12  prior  class  is reasonably available, the gift made by a person author-
    13  ized under section forty-three hundred six of this article may be:
    14    (a) amended only if a majority of  the  reasonably  available  members
    15  agree to the amending of the gift; or
    16    (b)  revoked  only  if  a majority of the reasonably available members
    17  agree to the revoking of the gift or if they are equally divided  as  to
    18  whether to revoke the gift.
    19    3.  A  revocation  under  subdivision two of this section is effective

    20  only if, before an incision has been made to  remove  a  part  from  the
    21  donor's  body  or  before  invasive procedures have begun to prepare the
    22  recipient, the procurement organization, transplant hospital, or  physi-
    23  cian or technician knows of the revocation.
    24    §  4308.  Persons  who  may  receive an anatomical gift; purpose of an
    25  anatomical gift. 1. An anatomical gift may  be  made  to  the  following
    26  persons named in the document of gift:
    27    (a)  a hospital; accredited medical school, dental school, college, or
    28  university; organ procurement organization; or other appropriate person,
    29  for research or education;
    30    (b) subject to subdivision two of this section, an  individual  desig-

    31  nated  by the person making the anatomical gift if the individual is the
    32  recipient of the part;
    33    (c) an eye bank or tissue bank.
    34    2. If an anatomical gift to  an  individual  under  paragraph  (b)  of
    35  subdivision one of this section shall not be transplanted into the indi-
    36  vidual,  the  part  passes  in accordance with subdivision seven of this
    37  section in the absence of an express,  contrary  record  by  the  person
    38  making the anatomical gift.
    39    3. If an anatomical gift of one or more specific parts or of all parts
    40  is  made  in a document of gift that does not name a person described in
    41  subdivision one of this section but identifies the purpose for which  an
    42  anatomical gift may be used, the following rules apply:

    43    (a)  If  the  part is an eye and the gift is for the purpose of trans-
    44  plantation or therapy, the gift passes to the appropriate eye bank.
    45    (b) If the part is tissue and the gift is for the  purpose  of  trans-
    46  plantation or therapy, the gift passes to the appropriate tissue bank.
    47    (c)  If the part is an organ and the gift is for the purpose of trans-
    48  plantation or therapy, the gift passes to the appropriate organ procure-
    49  ment organization as custodian of the organ.
    50    (d) If the part is an organ, an eye, or tissue and the gift is for the
    51  purpose of research or education, the gift  passes  to  the  appropriate
    52  procurement organization.
    53    4.  For the purposes of subdivision three of this section, if there is

    54  more than one purpose of an anatomical gift set forth in the document of
    55  gift but the purposes are not set forth in any priority, the gift  shall
    56  be  used for transplantation or therapy, if suitable. If the gift cannot

        S. 4488                             8
 
     1  be used for transplantation  or  therapy,  the  gift  may  be  used  for
     2  research or education.
     3    5.  If  an  anatomical gift of one or more specific parts is made in a
     4  document of gift that does not name a person  described  in  subdivision
     5  one  of  this section and does not identify the purpose of the gift, the
     6  gift may be used only for transplantation or therapy, and the gift pass-
     7  es in accordance with subdivision seven of this section.

     8    6. If a document of gift specifies only a general intent  to  make  an
     9  anatomical  gift  by  words  such  as  "donor",  "organ donor", or "body
    10  donor", or by a symbol or statement of similar import, the gift  may  be
    11  used only for transplantation or therapy, and the gift passes in accord-
    12  ance with subdivision seven of this section.
    13    7.  For purposes of subdivisions two, five and six of this section the
    14  following rules shall apply:
    15    (a) If the part is an eye, the gift  passes  to  the  appropriate  eye
    16  bank.
    17    (b)  If  the part is tissue, the gift passes to the appropriate tissue
    18  bank.
    19    (c) If the part is an organ, the gift passes to the appropriate  organ

    20  procurement organization as custodian of the organ.
    21    8.  An  anatomical  gift  of  an organ for transplantation or therapy,
    22  other than an anatomical gift under paragraph (b) of subdivision one  of
    23  this  section, passes to the organ procurement organization as custodian
    24  of the organ.
    25    9. If an anatomical gift does not pass pursuant  to  subdivisions  one
    26  through eight of this section or the decedent's body or part is not used
    27  for  transplantation,  therapy,  research,  or education, custody of the
    28  body or part passes to the person under obligation  to  dispose  of  the
    29  body or part.
    30    10.  A  person  may  not accept an anatomical gift if the person knows

    31  that the gift was not effectively made under section forty-three hundred
    32  three or forty-three hundred seven of this article. For purposes of this
    33  subdivision, if a person knows that an anatomical gift  was  made  on  a
    34  document of gift, the person is deemed to know of any amendment or revo-
    35  cation of the gift or any refusal to make an anatomical gift on the same
    36  document of gift.
    37    11.  Except  as otherwise provided in paragraph (b) of subdivision one
    38  of this section, nothing in  this  article  affects  the  allocation  of
    39  organs for transplantation or therapy.
    40    §  4309.  Search  and  notification.  1.  At  the  request of an organ
    41  procurement organization, the following persons shall make a  reasonable

    42  search  of  an  individual who the person reasonably believes is dead or
    43  near death for a document of gift or other information  identifying  the
    44  individual as a donor:
    45    (a)  a law enforcement officer, firefighter, paramedic, or other emer-
    46  gency rescuer finding the individual; and
    47    (b) if no other source of the information is immediately available,  a
    48  hospital,  as  soon  as  practical after the individual's arrival at the
    49  hospital.
    50    2. If a document of gift is located by the search  required  by  para-
    51  graph  (a)  of  subdivision  one  of  this section and the individual or
    52  deceased individual to whom it relates  is  taken  to  a  hospital,  the
    53  person  responsible for conducting the search shall send the document of

    54  gift to the hospital.
    55    3. A person is not subject to criminal or civil liability for  failing
    56  to discharge the duties imposed by this section.

        S. 4488                             9
 
     1    §  4310. Delivery of document of gift; right to examine. 1. A document
     2  of gift need not be delivered during the donor's lifetime to  be  effec-
     3  tive.
     4    2.  Upon  or  after an individual's death, a person in possession of a
     5  document of gift with respect to the individual shall allow  examination
     6  and  copying  of  the document of gift by a person authorized to make or
     7  object to the making of an anatomical gift with respect to the  individ-
     8  ual  or by a person to which the gift may pass under section forty-three

     9  hundred eight of this article.
    10    § 4311. Rights and duties of procurement organization and  others.  1.
    11  (a)  When  the  death of a person in a hospital has occurred or is immi-
    12  nent, the hospital shall contact the federally designated organ procure-
    13  ment organization in order to make a preliminary  determination  of  the
    14  suitability  of the person for organ donation, except where not required
    15  by paragraph (c) of this subdivision.
    16    (b) Where contact with  the  federally  designated  organ  procurement
    17  organization  is  not required under criteria developed by the federally
    18  designated organ procurement organization the hospital shall contact the
    19  appropriate eye bank or tissue bank, except where not required by  para-

    20  graph (c) of this subdivision.
    21    (c)  The  federally  designated  organ  procurement  organization,  in
    22  consultation with the tissue procurement providers, may  issue  criteria
    23  under  which  a hospital shall not be required to make the contact under
    24  this subdivision.
    25    (d) All hospitals shall select at least one eye bank  or  tissue  bank
    26  for the procurement of tissue, as defined in section forty-three hundred
    27  sixty  of this chapter. A hospital shall notify the federally designated
    28  organ procurement organization  of  its  choice  of  tissue  procurement
    29  providers.  If  a hospital selects more than one eye bank or tissue bank
    30  as a procurement provider, it may specify a rotation  of  referrals  for

    31  purposes of tissue procurement.
    32    (e) Where the federally designated organ procurement organization, eye
    33  bank  or  tissue  bank  is contacted, it shall, in consultation with the
    34  hospital, after appropriate medical screening (which may  include  sero-
    35  logical  testing if applicable) determine suitability for organ, eye and
    36  tissue donation, as appropriate.  Where  a  federally  designated  organ
    37  procurement  organization is contacted, it shall contact the appropriate
    38  eye bank or tissue bank with respect to suitability for  eye  or  tissue
    39  donation.
    40    (f)  If  the  federally designated organ procurement organization, eye
    41  bank or tissue bank determines  that  organ,  eye  or  tissue  donation,

    42  respectively,  is not appropriate based on established medical criteria,
    43  this shall be noted by hospital personnel on the patient's  record,  and
    44  no further action with respect to organ, eye or tissue donation, respec-
    45  tively, is necessary.
    46    (g)  The person initiating the request shall be designated by a hospi-
    47  tal and shall be  a  representative  of  a  federally  designated  organ
    48  procurement  organization, eye bank, tissue bank, or a designated reque-
    49  stor. As used in this section a  "designated  requestor"  shall  mean  a
    50  person  who  has  completed  a course provided by a federally designated
    51  organ procurement organization, eye bank or tissue  bank,  whichever  is
    52  applicable,  on  how  to  approach  potential donor families and request

    53  organ, eye, or tissue donation.
    54    (h) Any employee or agent of a federally designated organ  procurement
    55  organization,  eye  bank  or tissue bank acting pursuant to this section

        S. 4488                            10
 
     1  shall be held to the same standard of confidentiality as that imposed on
     2  employees of the hospital.
     3    2.  (a)  When  a  hospital  refers an individual at or near death to a
     4  procurement organization,  the  organization  shall  make  a  reasonable
     5  search  of the records pursuant to section forty-three hundred seventeen
     6  of this article and any donor registry that  it  knows  exists  for  the
     7  geographical  area  in which the individual resides to ascertain whether

     8  the individual has made an anatomical gift.
     9    (b) A procurement organization shall be allowed reasonable  access  to
    10  information  in  the  records  of  the  department,  pursuant to section
    11  forty-three hundred seventeen of this article to  ascertain  whether  an
    12  individual at or near death is a donor.
    13    (c)  When  a  hospital  refers  an  individual  at  or near death to a
    14  procurement organization, the organization may  conduct  any  reasonable
    15  examination  necessary  to ensure the medical suitability of a part that
    16  is or may be the subject of  an  anatomical  gift  for  transplantation,
    17  therapy,  research,  or  education  from a donor or a prospective donor.
    18  During the examination period, measures necessary to ensure the  medical

    19  suitability  of  the  part  may  not be withdrawn unless the hospital or
    20  procurement organization knows that the individual expressed a  contrary
    21  intent.
    22    (d)  Unless  prohibited  by  law  other than this article, at any time
    23  after a donor's death, the person to which a part passes  under  section
    24  forty-three  hundred  eight  of  this article may conduct any reasonable
    25  examination necessary to ensure the medical suitability of the  body  or
    26  part for its intended purpose.
    27    (e)  Unless  prohibited by law other than this article, an examination
    28  under section forty-three hundred ten of this  article  may  include  an
    29  examination  of  all medical and dental records of the donor or prospec-
    30  tive donor.

    31    (f) Upon the death of a minor who was a donor,  unless  a  procurement
    32  organization  knows  the minor is emancipated, the procurement organiza-
    33  tion shall conduct a reasonable search for the parents of the minor  and
    34  provide  the  parents with an opportunity to revoke or amend the anatom-
    35  ical gift.
    36    (g) Upon referral by a hospital under subdivision one of this section,
    37  a procurement organization shall make a reasonable search for any person
    38  listed in section forty-three hundred six of this article having priori-
    39  ty to make an anatomical gift on behalf of a  prospective  donor.  If  a
    40  procurement organization receives information that an anatomical gift to
    41  any other person was made, amended, or revoked, it shall promptly advise

    42  the other person of all relevant information.
    43    (h)  Subject to section forty-three hundred eight of this article, the
    44  rights of the person to which a part passes under such section are supe-
    45  rior to the rights of all others with respect to the  part.  The  person
    46  may  accept or reject an anatomical gift in whole or in part. Subject to
    47  the terms of the document of  gift  and  this  article,  a  person  that
    48  accepts an anatomical gift of an entire body may allow embalming, burial
    49  or cremation, and use of remains in a funeral service. If the gift is of
    50  a  part,  the  person to which the part passes under section forty-three
    51  hundred eight of this article, upon the death of the  donor  and  before

    52  embalming,  burial,  or  cremation,  shall  cause the part to be removed
    53  without unnecessary mutilation.
    54    (i) Neither the physician who attends the decedent at  death  nor  the
    55  physician  who  determines  the time of the decedent's death may partic-

        S. 4488                            11
 
     1  ipate in the procedures for removing or transplanting a  part  from  the
     2  decedent.
     3    (j)  A physician or technician may remove a donated part from the body
     4  of a donor that the physician or technician is qualified to remove.
     5    § 4312. Coordination of procurement and use.  Each  hospital  in  this
     6  state  shall  enter  into  agreements  or  affiliations with procurement

     7  organizations for coordination of  procurement  and  use  of  anatomical
     8  gifts.
     9    §  4313.  Sale or purchase of parts prohibited. 1. Except as otherwise
    10  provided in subdivision two of this section, a person that for  valuable
    11  consideration,  knowingly  purchases or sells a part for transplantation
    12  or therapy if removal of a part from an individual is intended to  occur
    13  after  the  individual's  death  shall  be  guilty  of a felony and upon
    14  conviction is subject to a fine not exceeding fifty thousand dollars  or
    15  imprisonment not exceeding five years, or both.
    16    2.  A  person may charge a reasonable amount for the removal, process-
    17  ing, preservation, quality control, storage,  transportation,  implanta-

    18  tion, or disposal of a part.
    19    §  4314.  Other  prohibited  acts. A person that, in order to obtain a
    20  financial gain, intentionally falsifies, forges, conceals,  defaces,  or
    21  obliterates a document of gift, an amendment or revocation of a document
    22  of  gift shall be guilty of a felony and upon conviction is subject to a
    23  fine not exceeding fifty thousand dollars or imprisonment not  exceeding
    24  five years, or both.
    25    §  4315. Immunity. 1. A person that acts in accordance with this arti-
    26  cle or with the applicable anatomical gift  law  of  another  state,  or
    27  attempts  in  good  faith to do so, is not liable for the act in a civil
    28  action, criminal prosecution,  or  administrative  proceeding.  For  the

    29  purpose  of  any proceeding, civil, criminal or administrative, the good
    30  faith of any such person shall be presumed, provided such person,  offi-
    31  cial  or  institution was acting in discharge of their duties and within
    32  the scope of their employment.
    33    2. Neither the person making an anatomical gift nor the donor's estate
    34  is liable for any injury or damage that results from the making  or  use
    35  of the gift.
    36    3.  In  determining whether an anatomical gift has been made, amended,
    37  or revoked under this article, a person may rely upon representations of
    38  an individual listed in paragraph (b), (c), (d), (e), (f), (g) or (h) of
    39  subdivision one of section  forty-three  hundred  six  of  this  article

    40  relating  to  the  individual's relationship to the donor or prospective
    41  donor unless the person knows that the representation is untrue.
    42    4. No physician, hospital or other health care provider may charge the
    43  donor's estate, family or insurer for any cost incurred  in  testing  or
    44  removing  a  human organ or tissue from a donor and such charge shall be
    45  void and unenforceable.
    46    § 4316. Law governing validity. 1. A document  of  gift  is  valid  if
    47  executed in accordance with:
    48    (a) this article;
    49    (b) the laws of the state or country where it was executed; or
    50    (c)  the  laws  of  the  state  or country where the person making the
    51  anatomical gift was domiciled, has  a  place  of  residence,  or  was  a

    52  national at the time the document of gift was executed.
    53    2.  If a document of gift is valid under this section, the law of this
    54  state governs the interpretation of the document of gift.

        S. 4488                            12
 
     1    3. A person may presume that a document of gift  or  amendment  of  an
     2  anatomical gift is valid unless that person knows that it was not valid-
     3  ly executed or was revoked.
     4    §  4317.  New York state donate life registry. 1. The department shall
     5  maintain an organ and tissue donor registry, which shall be referred  to
     6  as  the  New  York donate life registry and shall contain a statement or
     7  symbol that the donor has made or amended an anatomical gift.

     8    2. Such registration of anatomical gifts can be made through:
     9    (a) a statement or symbol made on the application or renewal form of a
    10  license,
    11    (b) a statement or symbol made on  a  non-driver  identification  card
    12  application or renewal form,
    13    (c)  enrollment  in the registry website maintained by the department,
    14  or
    15    (d) through any other method identified by the commissioner.
    16    3. (a) Information contained in the registry shall be accessible to:
    17    (1) federally regulated organ procurement agencies,
    18    (2) eye and tissue banks licensed by the department pursuant to  arti-
    19  cle forty-three-B of this chapter, and
    20    (3) any other entity formally approved by the commissioner.

    21    (b) The information contained in the registry shall not be released to
    22  any person except as expressly authorized by this section solely for the
    23  purpose  of identifying potential organ and tissue donors at or near the
    24  time of death.
    25    4. If the department had an established registry prior to  the  effec-
    26  tive  date  of this section, it shall be deemed to meet the requirements
    27  of this section.
    28    5. The registry shall provide  persons  enrolled  the  opportunity  to
    29  specify which organs and tissues they want to donate and if the donation
    30  can be used for transplantation and therapy or research, or both.
    31    6. The department of motor vehicles shall cooperate with a person that

    32  administers  any  donor  registry that this state establishes, contracts
    33  for, or recognizes for the purpose of transferring to the donor registry
    34  all relevant information regarding a donor's making,  amendment  to,  or
    35  revocation of an anatomical gift.
    36    7.  A  donor registry shall be accessible seven days a week on a twen-
    37  ty-four-hour basis.
    38    8. The commissioner is authorized to promulgate rules and  regulations
    39  necessary to implement the provisions of this section.
    40    § 4318. Effect of anatomical gift on advance health-care directive. 1.
    41  For the purposes of this section:
    42    (a)  "advance  health-care  directive"  means  a power of attorney for
    43  health care or a record signed by a  prospective  donor  containing  the

    44  prospective  donor's direction concerning a health-care decision for the
    45  prospective donor;
    46    (b) "declaration" means a record signed by a prospective donor  speci-
    47  fying  the  circumstances under which a life support system may be with-
    48  held or withdrawn from the prospective donor; and
    49    (c) "health-care decision"  means  any  decision  made  regarding  the
    50  health care of the prospective donor.
    51    2.  If  the  terms  of  a  prospective  donor's declaration or advance
    52  health-care directive and the express or implied terms of an  anatomical
    53  gift  made by the prospective donor, or made by any other person, appear
    54  to be in conflict with regard to the administration of  measures  neces-

    55  sary  to ensure the medical suitability of a part for transplantation or
    56  therapy, appropriate consultation shall occur to determine the  prospec-

        S. 4488                            13
 
     1  tive  donor's actual or likely intent in resolving that conflict. Resol-
     2  ution of the conflict shall occur as expeditiously as possible.  If  the
     3  prospective  donor  is  unable  to  resolve the conflict, another person
     4  authorized  by law other than this article to make health care decisions
     5  on behalf of the prospective donor shall resolve the conflict. Prior  to
     6  the resolution of the conflict, measures necessary to ensure the medical
     7  suitability  of  the  part  may  not  be  withheld or withdrawn from the

     8  prospective donor provided that withholding or withdrawing of the  meas-
     9  ures are not contraindicated by appropriate end-of-life care.
    10    §  4319.  Cooperation  between  the  coroner  or  medical examiner and
    11  procurement organization. 1. A coroner or medical examiner shall cooper-
    12  ate with  procurement  organizations  to  maximize  the  opportunity  to
    13  recover  anatomical  gifts  for the purpose of transplantation, therapy,
    14  research, or education.
    15    2. If a coroner or medical examiner receives notice from a procurement
    16  organization that an anatomical gift may be available or was  made  with
    17  respect to a decedent whose body is under the jurisdiction of the coron-
    18  er  or  medical  examiner  and  a post-mortem examination is going to be

    19  performed, unless the coroner or medical  examiner  denies  recovery  in
    20  accordance  with  section  six hundred seventy-four-a of the county law,
    21  the coroner or medical examiner or designee shall conduct a  post-mortem
    22  examination  of  the  body  or  the part in a manner and within a period
    23  compatible with its preservation for the purposes of the gift.
    24    3. A part may not be removed from the body of  a  decedent  under  the
    25  jurisdiction of a coroner or medical examiner for transplantation, ther-
    26  apy, research, or education unless the part is the subject of an anatom-
    27  ical  gift. The body of a decedent under the jurisdiction of the coroner
    28  or medical examiner may not be delivered to a  person  for  research  or

    29  education  unless  the  body  is the subject of an anatomical gift. This
    30  subdivision shall not  preclude  a  coroner  or  medical  examiner  from
    31  performing  the investigation upon the body or parts of a decedent under
    32  the jurisdiction of the coroner or medical examiner.
    33    § 4320. Release of records. Upon request of  a  procurement  organiza-
    34  tion,  a  coroner  or  medical examiner shall release to the procurement
    35  organization the name, contact information, and  available  medical  and
    36  social history of a decedent whose body is under the jurisdiction of the
    37  coroner or medical examiner. If the decedent's body or part is medically
    38  suitable  for  transplantation,  therapy,  research,  or  education, the

    39  coroner or medical examiner shall promptly release post-mortem  examina-
    40  tion  results to the procurement organization. The procurement organiza-
    41  tion may make a subsequent disclosure  of  the  post-mortem  examination
    42  results  or other information received from the coroner or medical exam-
    43  iner only if relevant to transplantation, therapy or research.
    44    § 3. Subdivision 10 of section 4201 of the public health law, as added
    45  by chapter 76 of the laws of 2006, is amended to read as follows:
    46    10. This section does not supersede, alter or abridge the execution of
    47  an anatomical gift or any provision of article forty-three of this chap-
    48  ter [including, but not limited to, the persons authorized to execute an

    49  anatomical gift pursuant to section  forty-three  hundred  one  of  this
    50  chapter].
    51    §  4. Section 4221 of the public health law, as amended by chapter 128
    52  of the laws of 1979, is amended to read as follows:
    53    § 4221. Removal of eyes and/or  parts  thereof  after  death.  If  any
    54  donation,  authorization  [or], consent [made pursuant to section forty-
    55  three hundred three of this article]  or  dissection  made  pursuant  to
    56  [subdivision  three  of  section  forty-two hundred ten of this] article

        S. 4488                            14
 
     1  forty-three of this  chapter  relates  to  the  removal  of  a  deceased
     2  person's  eyes and/or parts thereof, the individual or agency authorized

     3  to remove such eyes and/or parts thereof may permit such removal  to  be
     4  made by a medical student, technician or nurse.
     5    §  5. The opening paragraph of subdivision 1, subdivision 2 and subdi-
     6  vision 3 of section 4222 of the public health law, the opening paragraph
     7  of subdivision 1 and subdivision 2 as amended by chapter 242 of the laws
     8  of 1981 and subdivision 3 as added by chapter 879 of the laws  of  1985,
     9  are amended to read as follows:
    10    Upon  request  from  a  general hospital or medical center for corneal
    11  tissue for transplant or pituitary gland tissue for extraction of growth
    12  hormone, the coroner or medical examiner may then request  or  authorize
    13  an  agent  to  request  from  the authorized person under the conditions
    14  established [in subdivision two  of  section  forty-three  hundred  one]

    15  under  article forty-three of this chapter, the authorization, which may
    16  be oral or written according to law,  to  perform  the  removal.    Upon
    17  receiving  such  authorization,  the  coroner  or medical examiner shall
    18  authorize the supply of such corneal tissue or  pituitary  gland  tissue
    19  upon the following conditions:
    20    2.  The coroner or medical examiner authorizing the removal of corneal
    21  tissue or the pituitary gland tissue pursuant to the provisions of  this
    22  section  shall  not  be held liable in a civil action for damages by any
    23  person specified [by subdivision two of section forty-three hundred one]
    24  in section forty-three hundred six of this  chapter,  for  such  removal
    25  where  after the exercise of due diligence such coroner or medical exam-
    26  iner obtained authorization from any person  specified  [by  subdivision

    27  two  of  section  forty-three  hundred  one  of this chapter] under such
    28  section.
    29    3. Except where an anatomical gift has previously  been  requested  or
    30  authorized,  upon  the request of a tissue bank [or storage facility] as
    31  defined in section forty-three hundred of this chapter, the  coroner  or
    32  medical  examiner may then provide the name of the decedent under his or
    33  her jurisdiction and the name of the decedent's spouse or other  persons
    34  authorized  to  execute  an  anatomical  gift  in  accordance  with  the
    35  provisions of [section forty-three hundred one] article  forty-three  of
    36  this chapter.
    37    §  6. Subdivision 5 of section 4364 of the public health law, as added
    38  by chapter 589 of the laws of 1990, is amended to read as follows:

    39    5. No hospital or other facility and no  physician  shall  permit  any
    40  person to procure tissue or non-transplant organs unless such person has
    41  been  licensed  in  accordance with this article, or has been asked by a
    42  licensed bank or storage facility to procure a specified tissue or  non-
    43  transplant  organ.  No  bank or storage facility shall sell or otherwise
    44  transfer tissue for  valuable  consideration.    Valuable  consideration
    45  shall  not  include  reasonable  costs  associated with the procurement,
    46  processing, storage and distribution of tissue.    Nothing  [herein]  in
    47  this  section shall impair the provisions of section forty-three hundred
    48  [seven] thirteen of this chapter.
    49    § 7. Subdivision 1 of section 502 of the vehicle and traffic  law,  as

    50  amended  by  chapter  639  of  the  laws  of 2006, is amended to read as
    51  follows:
    52    1. Application for license.  Application for a driver's license  shall
    53  be made to the commissioner.  The fee prescribed by law may be submitted
    54  with such application. The applicant shall furnish such proof of identi-
    55  ty, age, and fitness as may be required by the commissioner. The commis-
    56  sioner may also provide that the application procedure shall include the

        S. 4488                            15
 
     1  taking  of  a  photo image or images of the applicant in accordance with
     2  rules and regulations prescribed by the commissioner. In  addition,  the
     3  commissioner  also  shall  require that the applicant provide his or her
     4  social  security number and provide space on the application so that the

     5  applicant may register in the New York state [organ  and  tissue  donor]
     6  donate  life  registry under section forty-three hundred [ten] seventeen
     7  of the public health law. In addition, an  applicant  for  a  commercial
     8  driver's  license  who will operate a commercial motor vehicle in inter-
     9  state commerce shall certify that such applicant meets the  requirements
    10  to  operate  a  commercial  motor  vehicle,  as  set forth in public law
    11  99-570, title XII, and title 49 of the code of federal regulations,  and
    12  all  regulations promulgated by the United States secretary of transpor-
    13  tation under the hazardous materials transportation act. Upon a determi-
    14  nation that the holder of a commercial driver's  license  has  made  any
    15  false  statement,  with respect to the application for such license, the
    16  commissioner shall revoke such license.

    17    § 8. Paragraph (a) of subdivision 1 of section 504 of the vehicle  and
    18  traffic  law,  as separately amended by chapters 568 and 639 of the laws
    19  of 2006, is amended to read as follows:
    20    (a) Every license or renewal thereof shall  contain  a  distinguishing
    21  mark  and  adequate  space  upon  which  an anatomical gift, pursuant to
    22  section forty-three hundred [ten] seventeen of the public health law, by
    23  the licensee shall be recorded and shall contain such other  information
    24  and  shall  be  issued in such form as the commissioner shall determine;
    25  provided, however, every license or renewal thereof issued to  a  person
    26  under  the age of twenty-one years shall have prominently imprinted upon
    27  it the statement "UNDER 21 YEARS OF AGE" in notably distinctive print or
    28  format; provided further, however,  every  license  or  renewal  thereof

    29  issued  to  a  person  making  an anatomical gift shall have prominently
    30  printed upon the front of such license or renewal thereof the  statement
    31  "ORGAN  DONOR"  in notably distinctive print or format. The commissioner
    32  shall not require fees for the issuance of  such  licenses  or  renewals
    33  thereof to persons under twenty-one years of age or to persons making an
    34  anatomical gift which are different from the fees required for the issu-
    35  ance  of licenses or renewals thereof to persons twenty-one years of age
    36  or over or to persons not making an anatomical gift.
    37    § 9. This act shall take effect on the one hundred eightieth day after
    38  it shall have become a law; provided, however, that effective immediate-
    39  ly the addition, amendment and/or  repeal  of  any  rule  or  regulation
    40  necessary  for  the implementation of this act on its effective date are

    41  authorized and directed to be made  and  completed  on  or  before  such
    42  effective date.
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