Text of NY A 904 (2009)

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Bill No.: Summary Actions Floor Votes Memo Text A00904 Summary: BILL NOA00904A SAME ASSAME AS S03910-A SPONSORGottfried (MS) COSPNSRBrodsky, Hoyt, Conte, Bing, Paulin, Jaffee, Brook-Krasny, Pheffer, Maisel, Schroeder, Fields, Millman, Bradley, John, Gunther, Cahill, Spano, Alfano, Kavanagh, Kellner, Dinowitz MLTSPNSRBarra, Boyland, Cusick, DelMonte, Diaz, Galef, Glick, Jacobs, Koon, Lancman, Lifton, Lopez V, Lupardo, Magee, McEneny, Reilly, Robinson, Scarborough, Sweeney, Thiele, Titone Amd SS4301, 4351, 2981 & 4201, Pub Health L 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. Go to top A00904 Text: 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. Go to top Sitemap Request Information Directions and Maps