Sets forth an order of priority for organ donation including the person designated as the decedent's health care agent subject to a health proxy form, the person designated as the decedent's agent per a written statement and the domestic partner; defines domestic partner.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A904A
SPONSOR: Gottfried (MS)
 
TITLE OF BILL:
An act to amend the public health law, in relation to revising the order
of persons with priority for organ donation and consent for organ
donations
 
PURPOSE OR GENERAL IDEA OF BILL:
To update the priority list of individuals who may consent to organ and
tissue donation.
 
SUMMARY OF SPECIFIC PROVISIONS:
This bill amends the list of people who may consent to organ donation by
adding the patient's designated health care proxy agent or disposition-
of-remains agent (if any), or domestic partner. The bill lists in order
of priority: the person designated as the decedent's health care agent
under Article 29-C of the Public Health Law; the person designated as
the decedent's disposition of remains agent in a written instrument
under Article 42 of the Public Health Law; spouse or domestic partner;
son or daughter 18 years of age or older; either parent; sibling 18
years of age or older; guardian of the person of the decedent at the
time of his or her death; any other person authorized or under obli-
gation to dispose of the body. A health care proxy or control of remains
written instrument may limit the authority of the agent or designated
person. Defines "reasonably available" and "domestic partner." Clari-
fies that the person who documents the making, amending or revoking of
an anatomical gift may, reasonably and in good faith, accept such gift
made by a person who represents that he or she is entitled to consent to
the donation.
 
JUSTIFICATION:
Article 43 of the Public Health Law identifies the individuals who may
consent to organ and tissue donation. This bill aims to update the list
by recognizing health care and disposition of remains agents, as well as
domestic partners and enables individuals who have designated health
care agents and/or written instruments designating disposition of
remains agents to use those agents for this purpose. The provisions
relating to domestic partners are modeled on Article 42 of the Public
Health Law.
 
PRIOR LEGISLATIVE HISTORY:
2005-06: A.11760 - passed Assembly
2007-08: A.8391 - passed Assembly
 
FISCAL IMPLICATIONS:
None.
 
EFFECTIVE DATE:
60 days after it becomes law.
STATE OF NEW YORK
________________________________________________________________________
904--A
Cal. No. 302
2009-2010 Regular Sessions
IN ASSEMBLY(Prefiled)
January 7, 2009
___________
Introduced by M. of A. GOTTFRIED, BRODSKY, HOYT, CONTE, BING, PAULIN,
JAFFEE, BROOK-KRASNY, PHEFFER, MAISEL, SCHROEDER, FIELDS, MILLMAN,
BRADLEY, JOHN, GUNTHER, CAHILL, SPANO, ALFANO, KAVANAGH, KELLNER,
DINOWITZ -- Multi-Sponsored by -- M. of A. BARRA, BOYLAND, CUSICK,
DelMONTE, GALEF, GLICK, JACOBS, KOON, LANCMAN, LIFTON, V. LOPEZ,
LUPARDO, MAGEE, McENENY, REILLY, ROBINSON, SCARBOROUGH, SWEENEY,
THIELE, TITONE -- read once and referred to the Committee on Health --
passed by Assembly and delivered to the Senate, recalled from the
Senate, vote reconsidered, bill amended, ordered reprinted, retaining
its place on the order of third reading
AN ACT to amend the public health law, in relation to revising the order
of persons with priority for organ donation and consent for organ
donations
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Section 4301 of the public health law, as amended by chap-
2 ter 62 of the laws of 1994 and subdivisions 1 and 3 as amended by chap-
3 ter 639 of the laws of 2006, is amended to read as follows:
4 § 4301. Persons who may execute an anatomical gift. 1. Any individual
5 of sound mind and eighteen years of age or more may give all or any part
6 of his or her body for any purpose specified in section [four thousand
7 three] forty-three hundred two of this article, the gift to take effect
8 upon death. In any case where the donor has properly executed an organ
9 donor card, driver's license authorization to make an anatomical gift,
10 pursuant to paragraph (a) of subdivision one of section five hundred
11 four of the vehicle and traffic law, registered in the New York state
12 organ and tissue donor registry under section forty-three hundred ten of
13 this article, or has otherwise given written authorization for organ or
14 tissue donation, authorization for donation shall not be rescinded by an
15 objection by a member of any of the classes specified in paragraphs (a)
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD00375-04-9
A. 904--A 2
1 through [(f)] (h) of subdivision two of this section, except upon a
2 showing that the donor revoked the authorization.
3 2. Any of the following persons, in the order of priority stated, may,
4 when persons in prior classes are not reasonably available, willing, and
5 able to act, at the time of death, and in the absence of actual notice
6 of contrary indications by the decedent, or actual notice of opposition
7 by a member of the same class or prior class specified in paragraph (a),
8 (b), (c), (d) [or], (e), (f), (g) or (h) of this subdivision, or reason
9 to believe that an anatomical gift is contrary to the decedent's reli-
10 gious or moral beliefs, give all or any part of the decedent's body for
11 any purpose specified in section [four thousand three] forty-three
12 hundred two of this article:
13 (a) the person designated as the decedent's health care agent under
14 article twenty-nine-C of this chapter, subject to any written statement
15 in the health care proxy form,
16 (b) the person designated as the decedent's agent in a written instru-
17 ment under article forty-two of this chapter, subject to any written
18 statement in the written instrument,
19 (c) the spouse, if not legally separated from the patient, or the
20 domestic partner,
21 [(b)] (d) a son or daughter eighteen years of age or older,
22 [(c)] (e) either parent,
23 [(d)] (f) a brother or sister eighteen years of age or older,
24 [(e)] (g) a guardian of the person of the decedent at the time of his
25 death,
26 [(f)] (h) any other person authorized or under the obligation to
27 dispose of the body.
28 3. For the purposes of this section, "reasonably available" means
29 that a person to be contacted can be contacted without undue effort and
30 willing and able to act in a timely manner consistent with existing
31 medical criteria necessary for the making of an anatomical gift.
32 4. For the purposes of this section, "domestic partner" means a person
33 who, with respect to another person:
34 (a) is formally a party in a domestic partnership or similar relation-
35 ship with the other person, entered into pursuant to the laws of the
36 United States or any state, local or foreign jurisdiction, or registered
37 as the domestic partner of the person with any registry maintained by
38 the employer of either party or any state, municipality, or foreign
39 jurisdiction; or
40 (b) is formally recognized as a beneficiary or covered person under
41 the other person's employment benefits or health insurance; or
42 (c) is dependent or mutually interdependent on the other person for
43 support, as evidenced by the totality of the circumstances indicating a
44 mutual intent to be domestic partners including but not limited to:
45 common ownership or joint leasing of real or personal property; common
46 householding, shared income or shared expenses; children in common;
47 signs of intent to marry or become domestic partners under paragraph (a)
48 or (b) of this subdivision; or the length of the personal relationship
49 of the persons.
50 Each party to a domestic partnership shall be considered to be the
51 domestic partner of the other party. "Domestic partner" shall not
52 include a person who is related to the other person by blood in a manner
53 that would bar marriage to the other person in New York state. "Domestic
54 partner" shall also not include any person who is less than eighteen
55 years of age or who is the adopted child of the other person or who is
A. 904--A 3
1 related by blood in a manner that would bar marriage in New York state
2 to a person who is the lawful spouse of the other person.
3 5. The donee shall not accept the gift under the following circum-
4 stances:
5 (a) the donee has actual notice of contrary indication by the dece-
6 dent;
7 (b) where the donor has not properly executed an organ donor card,
8 driver's license authorization to make an anatomical gift, pursuant to
9 paragraph (a) of subdivision one of section five hundred four of the
10 vehicle and traffic law, registered in the New York state organ and
11 tissue donor registry under section forty-three hundred ten of this
12 article, or otherwise given written authorization for organ or tissue
13 donation, or has revoked any such authorization, and the gift is opposed
14 by a person or persons in the highest priority available of the classes
15 specified in paragraph (a), (b), (c), (d) [or], (e), (f), (g) or (h) of
16 subdivision two of this section; or
17 (c) the donee has reason to believe that an anatomical gift is contra-
18 ry to the decedent's religious or moral beliefs.
19 [4.] 6. A gift of all or part of a body authorizes any examination
20 necessary to assure medical acceptability of gift for the purposes
21 intended.
22 [5.] 7. The rights of the donee created by the gift are paramount to
23 the rights of others except as provided by section [four thousand three]
24 forty-three hundred eight of this article.
25 8. The person who documents the making, amending or revoking of an
26 anatomical gift, acting reasonably and in good faith in accordance with
27 this article, may accept an anatomical gift under this article made by a
28 person who represents that he or she is entitled to consent to the
29 donation.
30 § 2. Section 4351 of the public health law, as added by chapter 668 of
31 the laws of 1997 and subdivision 4 as amended by chapter 639 of the laws
32 of 2006, is amended to read as follows:
33 § 4351. Duties of hospital administrators, organ procurement organiza-
34 tions, eye banks and tissue banks. 1. (a) When the death of a person in
35 a hospital has occurred or is imminent, the hospital shall contact the
36 federally designated organ procurement organization in order to make a
37 preliminary determination of the suitability of the person for organ
38 donation, except where not required by paragraph (c) of this subdivi-
39 sion.
40 (b) Where contact with the federally designated organ procurement
41 organization is not required under criteria developed regionally by the
42 federally designated organ procurement organization subject to the
43 approval of such criteria by the department, the hospital shall contact
44 the appropriate eye bank or tissue bank, except where not required by
45 paragraph (c) of this subdivision.
46 (c) The federally designated organ procurement organization, in
47 consultation with the tissue procurement providers, may issue criteria
48 under which a hospital shall not be required to make the contact under
49 this subdivision.
50 (d) All hospitals shall select at least one eye bank or tissue bank
51 for the procurement of tissue, as defined in section forty-three hundred
52 sixty of this chapter. A hospital shall notify the federally designated
53 organ procurement organization of its choice of tissue procurement
54 providers. If a hospital selects more than one eye bank or tissue bank
55 as a procurement provider, it may specify a rotation of referrals for
56 purposes of tissue procurement.
A. 904--A 4
1 2. Where the federally designated organ procurement organization, eye
2 bank or tissue bank is contacted, it shall, in consultation with the
3 hospital, after appropriate medical screening (which may include sero-
4 logical testing if applicable) determine suitability for organ, eye and
5 tissue donation, as appropriate. Where a federally designated organ
6 procurement organization is contacted, it shall contact the appropriate
7 eye bank or tissue bank with respect to suitability for eye or tissue
8 donation.
9 3. If the federally designated organ procurement organization, eye
10 bank or tissue bank determines that organ, eye or tissue donation,
11 respectively, is not appropriate based on established medical criteria,
12 this shall be noted by hospital personnel on the patient's record, and
13 no further action with respect to organ, eye or tissue donation, respec-
14 tively, is necessary.
15 4. Where a patient is a suitable candidate for organ, eye or tissue
16 donation and where the patient has not properly executed an organ donor
17 card, driver's license authorization to make an anatomical gift, pursu-
18 ant to paragraph (a) of subdivision one of section five hundred four of
19 the vehicle and traffic law, registered in the New York state organ and
20 tissue registry under section forty-three hundred ten of this [article]
21 chapter, or otherwise given written authorization for organ, eye or
22 tissue donation, the hospital or its designee shall cause a timely
23 request to be made to any of the following persons, in order of priority
24 stated, when persons in prior classes are not reasonably available,
25 willing, and able to act, and in the absence of actual notice of contra-
26 ry intentions by the decedent, or actual notice of opposition by a
27 person or persons in the highest priority available of the classes spec-
28 ified in paragraph (a), (b), (c), (d), [or] (e), (f) or (g) of this
29 subdivision, or other reason to believe that an anatomic gift is contra-
30 ry to the decedent's religious beliefs, to consent to the gift of all or
31 any part of the decedent's body for any purpose specified in article
32 forty-three of this chapter:
33 (a) the person designated as the decedent's health care agent under
34 article twenty-nine-C of this chapter, subject to any written statement
35 in the health care proxy form;
36 (b) the person designated as the decedent's agent in a written instru-
37 ment under article forty-two of this chapter, subject to any written
38 statement in the written instrument;
39 (c) the spouse, if not legally separated from the patient, or the
40 domestic partner;
41 [(b)] (d) a son or daughter eighteen years of age or older;
42 [(c)] (e) either parent;
43 [(d)] (f) a brother or sister eighteen years of age or older;
44 [(e)] (g) a guardian of the person of the decedent at the time of his
45 or her death.
46 5. For the purposes of this section, "reasonably available" means
47 that a person to be contacted can be contacted without undue effort and
48 willing and able to act in a timely manner consistent with existing
49 medical criteria necessary for the making of an anatomical gift.
50 6. For the purposes of this section, "domestic partner" means a person
51 who, with respect to another person:
52 (a) is formally a party in a domestic partnership or similar relation-
53 ship with the other person, entered into pursuant to the laws of the
54 United States or any state, local or foreign jurisdiction, or registered
55 as the domestic partner of the person with any registry maintained by
A. 904--A 5
1 the employer of either party or any state, municipality, or foreign
2 jurisdiction; or
3 (b) is formally recognized as a beneficiary or covered person under
4 the other person's employment benefits or health insurance; or
5 (c) is dependent or mutually interdependent on the other person for
6 support, as evidenced by the totality of the circumstances indicating a
7 mutual intent to be domestic partners including but not limited to:
8 common ownership or joint leasing of real or personal property; common
9 householding, shared income or shared expenses; children in common;
10 signs of intent to marry or become domestic partners under paragraph (a)
11 or (b) of this subdivision; or the length of the personal relationship
12 of the persons.
13 Each party to a domestic partnership shall be considered to be the
14 domestic partner of the other party. "Domestic partner" shall not
15 include a person who is related to the other person by blood in a manner
16 that would bar marriage to the other person in New York state. "Domestic
17 partner" shall also not include any person who is less than eighteen
18 years of age or who is the adopted child of the other person or who is
19 related by blood in a manner that would bar marriage in New York state
20 to a person who is the lawful spouse of the other person.
21 7. The person initiating the request shall be designated by a hospital
22 and shall be a representative of a federally designated organ procure-
23 ment organization, eye bank, tissue bank, or a designated requestor. As
24 used in this section a "designated requestor" shall mean a person who
25 has completed a course provided by a federally designated organ procure-
26 ment organization, eye bank or tissue bank, whichever is applicable, on
27 how to approach potential donor families and request organ, eye, or
28 tissue donation.
29 [6.] 8. Any employee or agent of a federally designated organ procure-
30 ment organization, eye bank or tissue bank acting pursuant to this
31 section shall be held to the same standard of confidentiality as that
32 imposed on employees of the hospital.
33 [7.] 9. The person who documents the making, amending or revoking of
34 an anatomical gift, acting reasonably and in good faith in accordance
35 with this article, may accept an anatomical gift under this article made
36 by a person who represents that he or she is entitled to consent to the
37 donation.
38 10. The provisions of subdivision three of section forty-three hundred
39 six of this chapter shall apply to this section. To the extent permissi-
40 ble under such subdivision, any person or organization acting pursuant
41 to this section, shall be legally responsible for any negligent or
42 intentional act or omission committed by such entity or its employees or
43 agents.
44 [8.] 11. A gift made pursuant to the request required by this section
45 shall be executed pursuant to applicable provisions of article forty-
46 three of this chapter.
47 [9.] 12. The commissioner shall establish regulations concerning the
48 training of persons who may be designated to perform the request, and
49 the procedures to be employed in making it.
50 [10.] 13. The commissioner shall establish such additional regulations
51 as are necessary for the implementation of this section.
52 § 3. Paragraph (f) of subdivision 5 of section 2981 of the public
53 health law, as added by chapter 540 of the laws of 2000, is amended to
54 read as follows:
55 (f) A health care proxy may include the principal's wishes or
56 instructions regarding organ and tissue donation and may limit the
A. 904--A 6
1 health care agent's authority to consent to organ or tissue donation or
2 designate another person to do so, under article forty-three of this
3 chapter. Failure to state wishes or instructions shall not be construed
4 to imply a wish not to donate.
5 § 4. Section 4201 of the public health law is amended by adding a new
6 subdivision 4-a to read as follows:
7 4-a. A written instrument under this section may limit the disposition
8 of remains agent's authority to consent to organ or tissue donation or
9 designate another person to do so, under article forty-three of this
10 chapter. Failure to state wishes or instructions shall not be construed
11 to imply a wish not to donate.
12 § 5. This act shall take effect on the sixtieth day after it shall
13 have become a law.