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.
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 Articles 43 and 43-A of the public health law are REPEALED and a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.
