Text of NY S 3910 (2009)

Skip to main content New York State Assembly Speaker Carl E. Heastie Assembly Members Legislative Info Public Hearings Speaker's Press Assembly Reports Committees & More Bill Search Home Laws Legislative Calendar Public Hearing Schedule Assembly Calendars Assembly Committee Agenda Javascript must be enabled to properly view this page. - This bill is not active in this session. Bill No.: Summary Actions Floor Votes Memo Text S03910 Summary: BILL NOS03910A SAME ASSAME AS A00904-A SPONSORDUANE COSPNSR MLTSPNSR 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 S03910 Text: STATE OF NEW YORK ________________________________________________________________________ 3910--A 2009-2010 Regular Sessions IN SENATE April 3, 2009 ___________ Introduced by Sens. DUANE, MONSERRATE, MONTGOMERY, SERRANO, THOMPSON -- read twice and ordered printed, and when printed to be committed to the Committee on Health -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee 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) 16 through [(f)] (h) of subdivision two of this section, except upon a 17 showing that the donor revoked the authorization. 18 2. Any of the following persons, in the order of priority stated, may, 19 when persons in prior classes are not reasonably available, willing, and 20 able to act, at the time of death, and in the absence of actual notice 21 of contrary indications by the decedent, or actual notice of opposition 22 by a member of the same class or prior class specified in paragraph (a), EXPLANATION--Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD00375-03-9 S. 3910--A 2 1 (b), (c), (d) [or], (e), (f), (g) or (h) of this subdivision, or reason 2 to believe that an anatomical gift is contrary to the decedent's reli- 3 gious or moral beliefs, give all or any part of the decedent's body for 4 any purpose specified in section [four thousand three] forty-three 5 hundred two of this article: 6 (a) the person designated as the decedent's health care agent under 7 article twenty-nine-C of this chapter, subject to any written statement 8 in the health care proxy form, 9 (b) the person designated as the decedent's agent in a written instru- 10 ment under article forty-two of this chapter, subject to any written 11 statement in the written instrument, 12 (c) the spouse, if not legally separated from the patient, or the 13 domestic partner, 14 [(b)] (d) a son or daughter eighteen years of age or older, 15 [(c)] (e) either parent, 16 [(d)] (f) a brother or sister eighteen years of age or older, 17 [(e)] (g) a guardian of the person of the decedent at the time of his 18 death, 19 [(f)] (h) any other person authorized or under the obligation to 20 dispose of the body. 21 3. For the purposes of this section, "reasonably available" means 22 that a person to be contacted can be contacted without undue effort and 23 willing and able to act in a timely manner consistent with existing 24 medical criteria necessary for the making of an anatomical gift. 25 4. For the purposes of this section, "domestic partner" means a person 26 who, with respect to another person: 27 (a) is formally a party in a domestic partnership or similar relation- 28 ship with the other person, entered into pursuant to the laws of the 29 United States or any state, local or foreign jurisdiction, or registered 30 as the domestic partner of the person with any registry maintained by 31 the employer of either party or any state, municipality, or foreign 32 jurisdiction; or 33 (b) is formally recognized as a beneficiary or covered person under 34 the other person's employment benefits or health insurance; or 35 (c) is dependent or mutually interdependent on the other person for 36 support, as evidenced by the totality of the circumstances indicating a 37 mutual intent to be domestic partners including but not limited to: 38 common ownership or joint leasing of real or personal property; common 39 householding, shared income or shared expenses; children in common; 40 signs of intent to marry or become domestic partners under paragraph (a) 41 or (b) of this subdivision; or the length of the personal relationship 42 of the persons. 43 Each party to a domestic partnership shall be considered to be the 44 domestic partner of the other party. "Domestic partner" shall not 45 include a person who is related to the other person by blood in a manner 46 that would bar marriage to the other person in New York state. "Domestic 47 partner" shall also not include any person who is less than eighteen 48 years of age or who is the adopted child of the other person or who is 49 related by blood in a manner that would bar marriage in New York state 50 to a person who is the lawful spouse of the other person. 51 5. The donee shall not accept the gift under the following circum- 52 stances: 53 (a) the donee has actual notice of contrary indication by the dece- 54 dent; 55 (b) where the donor has not properly executed an organ donor card, 56 driver's license authorization to make an anatomical gift, pursuant to S. 3910--A 3 1 paragraph (a) of subdivision one of section five hundred four of the 2 vehicle and traffic law, registered in the New York state organ and 3 tissue donor registry under section forty-three hundred ten of this 4 article, or otherwise given written authorization for organ or tissue 5 donation, or has revoked any such authorization, and the gift is opposed 6 by a person or persons in the highest priority available of the classes 7 specified in paragraph (a), (b), (c), (d) [or], (e), (f), (g) or (h) of 8 subdivision two of this section; or 9 (c) the donee has reason to believe that an anatomical gift is contra- 10 ry to the decedent's religious or moral beliefs. 11 [4.] 6. A gift of all or part of a body authorizes any examination 12 necessary to assure medical acceptability of gift for the purposes 13 intended. 14 [5.] 7. The rights of the donee created by the gift are paramount to 15 the rights of others except as provided by section [four thousand three] 16 forty-three hundred eight of this article. 17 8. The person who documents the making, amending or revoking of an 18 anatomical gift, acting reasonably and in good faith in accordance with 19 this article, may accept an anatomical gift under this article made by a 20 person who represents that he or she is entitled to consent to the 21 donation. 22 § 2. Section 4351 of the public health law, as added by chapter 668 of 23 the laws of 1997 and subdivision 4 as amended by chapter 639 of the laws 24 of 2006, is amended to read as follows: 25 § 4351. Duties of hospital administrators, organ procurement organiza- 26 tions, eye banks and tissue banks. 1. (a) When the death of a person in 27 a hospital has occurred or is imminent, the hospital shall contact the 28 federally designated organ procurement organization in order to make a 29 preliminary determination of the suitability of the person for organ 30 donation, except where not required by paragraph (c) of this subdivi- 31 sion. 32 (b) Where contact with the federally designated organ procurement 33 organization is not required under criteria developed regionally by the 34 federally designated organ procurement organization subject to the 35 approval of such criteria by the department, the hospital shall contact 36 the appropriate eye bank or tissue bank, except where not required by 37 paragraph (c) of this subdivision. 38 (c) The federally designated organ procurement organization, in 39 consultation with the tissue procurement providers, may issue criteria 40 under which a hospital shall not be required to make the contact under 41 this subdivision. 42 (d) All hospitals shall select at least one eye bank or tissue bank 43 for the procurement of tissue, as defined in section forty-three hundred 44 sixty of this chapter. A hospital shall notify the federally designated 45 organ procurement organization of its choice of tissue procurement 46 providers. If a hospital selects more than one eye bank or tissue bank 47 as a procurement provider, it may specify a rotation of referrals for 48 purposes of tissue procurement. 49 2. Where the federally designated organ procurement organization, eye 50 bank or tissue bank is contacted, it shall, in consultation with the 51 hospital, after appropriate medical screening (which may include sero- 52 logical testing if applicable) determine suitability for organ, eye and 53 tissue donation, as appropriate. Where a federally designated organ 54 procurement organization is contacted, it shall contact the appropriate 55 eye bank or tissue bank with respect to suitability for eye or tissue 56 donation. S. 3910--A 4 1 3. If the federally designated organ procurement organization, eye 2 bank or tissue bank determines that organ, eye or tissue donation, 3 respectively, is not appropriate based on established medical criteria, 4 this shall be noted by hospital personnel on the patient's record, and 5 no further action with respect to organ, eye or tissue donation, respec- 6 tively, is necessary. 7 4. Where a patient is a suitable candidate for organ, eye or tissue 8 donation and where the patient has not properly executed an organ donor 9 card, driver's license authorization to make an anatomical gift, pursu- 10 ant to paragraph (a) of subdivision one of section five hundred four of 11 the vehicle and traffic law, registered in the New York state organ and 12 tissue registry under section forty-three hundred ten of this [article] 13 chapter, or otherwise given written authorization for organ, eye or 14 tissue donation, the hospital or its designee shall cause a timely 15 request to be made to any of the following persons, in order of priority 16 stated, when persons in prior classes are not reasonably available, 17 willing, and able to act, and in the absence of actual notice of contra- 18 ry intentions by the decedent, or actual notice of opposition by a 19 person or persons in the highest priority available of the classes spec- 20 ified in paragraph (a), (b), (c), (d), [or] (e), (f) or (g) of this 21 subdivision, or other reason to believe that an anatomic gift is contra- 22 ry to the decedent's religious beliefs, to consent to the gift of all or 23 any part of the decedent's body for any purpose specified in article 24 forty-three of this chapter: 25 (a) the person designated as the decedent's health care agent under 26 article twenty-nine-C of this chapter, subject to any written statement 27 in the health care proxy form; 28 (b) the person designated as the decedent's agent in a written instru- 29 ment under article forty-two of this chapter, subject to any written 30 statement in the written instrument; 31 (c) the spouse, if not legally separated from the patient, or the 32 domestic partner; 33 [(b)] (d) a son or daughter eighteen years of age or older; 34 [(c)] (e) either parent; 35 [(d)] (f) a brother or sister eighteen years of age or older; 36 [(e)] (g) a guardian of the person of the decedent at the time of his 37 or her death. 38 5. For the purposes of this section, "reasonably available" means 39 that a person to be contacted can be contacted without undue effort and 40 willing and able to act in a timely manner consistent with existing 41 medical criteria necessary for the making of an anatomical gift. 42 6. For the purposes of this section, "domestic partner" means a person 43 who, with respect to another person: 44 (a) is formally a party in a domestic partnership or similar relation- 45 ship with the other person, entered into pursuant to the laws of the 46 United States or any state, local or foreign jurisdiction, or registered 47 as the domestic partner of the person with any registry maintained by 48 the employer of either party or any state, municipality, or foreign 49 jurisdiction; or 50 (b) is formally recognized as a beneficiary or covered person under 51 the other person's employment benefits or health insurance; or 52 (c) is dependent or mutually interdependent on the other person for 53 support, as evidenced by the totality of the circumstances indicating a 54 mutual intent to be domestic partners including but not limited to: 55 common ownership or joint leasing of real or personal property; common 56 householding, shared income or shared expenses; children in common; S. 3910--A 5 1 signs of intent to marry or become domestic partners under paragraph (a) 2 or (b) of this subdivision; or the length of the personal relationship 3 of the persons. 4 Each party to a domestic partnership shall be considered to be the 5 domestic partner of the other party. "Domestic partner" shall not 6 include a person who is related to the other person by blood in a manner 7 that would bar marriage to the other person in New York state. "Domestic 8 partner" shall also not include any person who is less than eighteen 9 years of age or who is the adopted child of the other person or who is 10 related by blood in a manner that would bar marriage in New York state 11 to a person who is the lawful spouse of the other person. 12 7. The person initiating the request shall be designated by a hospital 13 and shall be a representative of a federally designated organ procure- 14 ment organization, eye bank, tissue bank, or a designated requestor. As 15 used in this section a "designated requestor" shall mean a person who 16 has completed a course provided by a federally designated organ procure- 17 ment organization, eye bank or tissue bank, whichever is applicable, on 18 how to approach potential donor families and request organ, eye, or 19 tissue donation. 20 [6.] 8. Any employee or agent of a federally designated organ procure- 21 ment organization, eye bank or tissue bank acting pursuant to this 22 section shall be held to the same standard of confidentiality as that 23 imposed on employees of the hospital. 24 [7.] 9. The person who documents the making, amending or revoking of 25 an anatomical gift, acting reasonably and in good faith in accordance 26 with this article, may accept an anatomical gift under this article made 27 by a person who represents that he or she is entitled to consent to the 28 donation. 29 10. The provisions of subdivision three of section forty-three hundred 30 six of this chapter shall apply to this section. To the extent permissi- 31 ble under such subdivision, any person or organization acting pursuant 32 to this section, shall be legally responsible for any negligent or 33 intentional act or omission committed by such entity or its employees or 34 agents. 35 [8.] 11. A gift made pursuant to the request required by this section 36 shall be executed pursuant to applicable provisions of article forty- 37 three of this chapter. 38 [9.] 12. The commissioner shall establish regulations concerning the 39 training of persons who may be designated to perform the request, and 40 the procedures to be employed in making it. 41 [10.] 13. The commissioner shall establish such additional regulations 42 as are necessary for the implementation of this section. 43 § 3. Paragraph (f) of subdivision 5 of section 2981 of the public 44 health law, as added by chapter 540 of the laws of 2000, is amended to 45 read as follows: 46 (f) A health care proxy may include the principal's wishes or 47 instructions regarding organ and tissue donation and may limit the 48 health care agent's authority to consent to organ or tissue donation or 49 designate another person to do so, under article forty-three of this 50 chapter. Failure to state wishes or instructions shall not be construed 51 to imply a wish not to donate. 52 § 4. Section 4201 of the public health law is amended by adding a new 53 subdivision 4-a to read as follows: 54 4-a. A written instrument under this section may limit the disposition 55 of remains agent's authority to consent to organ or tissue donation or 56 designate another person to do so, under article forty-three of this S. 3910--A 6 1 chapter. Failure to state wishes or instructions shall not be construed 2 to imply a wish not to donate. 3 § 5. This act shall take effect on the sixtieth day after it shall 4 have become a law. Go to top Sitemap Request Information Directions and Maps