S T A T E O F N E W Y O R K
________________________________________________________________________
904--A
Cal. No. 302
2009-2010 Regular Sessions
I N A S S E M B L Y
(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:
Section 1. Section 4301 of the public health law, as amended by chap-
ter 62 of the laws of 1994 and subdivisions 1 and 3 as amended by chap-
ter 639 of the laws of 2006, is amended to read as follows:
S 4301. Persons who may execute an anatomical gift. 1. Any individual
of sound mind and eighteen years of age or more may give all or any part
of his or her body for any purpose specified in section [four thousand
three] FORTY-THREE hundred two of this article, the gift to take effect
upon death. In any case where the donor has properly executed an organ
donor card, driver's license authorization to make an anatomical gift,
pursuant to paragraph (a) of subdivision one of section five hundred
four of the vehicle and traffic law, registered in the New York state
organ and tissue donor registry under section forty-three hundred ten of
this article, or has otherwise given written authorization for organ or
tissue donation, authorization for donation shall not be rescinded by an
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
through [(f)] (H) of subdivision two of this section, except upon a
showing that the donor revoked the authorization.
2. Any of the following persons, in the order of priority stated, may,
when persons in prior classes are not REASONABLY available, WILLING, AND
ABLE TO ACT, at the time of death, and in the absence of actual notice
of contrary indications by the decedent, or actual notice of opposition
by a member of the same class or prior class specified in paragraph (a),
(b), (c), (d) [or], (e), (F), (G) OR (H) of this subdivision, or reason
to believe that an anatomical gift is contrary to the decedent's reli-
gious or moral beliefs, give all or any part of the decedent's body for
any purpose specified in section [four thousand three] FORTY-THREE
hundred two of this article:
(a) THE PERSON DESIGNATED AS THE DECEDENT'S HEALTH CARE AGENT UNDER
ARTICLE TWENTY-NINE-C OF THIS CHAPTER, SUBJECT TO ANY WRITTEN STATEMENT
IN THE HEALTH CARE PROXY FORM,
(B) THE PERSON DESIGNATED AS THE DECEDENT'S AGENT IN A WRITTEN INSTRU-
MENT UNDER ARTICLE FORTY-TWO OF THIS CHAPTER, SUBJECT TO ANY WRITTEN
STATEMENT IN THE WRITTEN INSTRUMENT,
(C) the spouse, IF NOT LEGALLY SEPARATED FROM THE PATIENT, OR THE
DOMESTIC PARTNER,
[(b)] (D) a son or daughter eighteen years of age or older,
[(c)] (E) either parent,
[(d)] (F) a brother or sister eighteen years of age or older,
[(e)] (G) a guardian of the person of the decedent at the time of his
death,
[(f)] (H) any other person authorized or under the obligation to
dispose of the body.
3. FOR THE PURPOSES OF THIS SECTION, "REASONABLY AVAILABLE" MEANS
THAT A PERSON TO BE CONTACTED CAN BE CONTACTED WITHOUT UNDUE EFFORT AND
WILLING AND ABLE TO ACT IN A TIMELY MANNER CONSISTENT WITH EXISTING
MEDICAL CRITERIA NECESSARY FOR THE MAKING OF AN ANATOMICAL GIFT.
4. FOR THE PURPOSES OF THIS SECTION, "DOMESTIC PARTNER" MEANS A PERSON
WHO, WITH RESPECT TO ANOTHER PERSON:
(A) IS FORMALLY A PARTY IN A DOMESTIC PARTNERSHIP OR SIMILAR RELATION-
SHIP WITH THE OTHER PERSON, ENTERED INTO PURSUANT TO THE LAWS OF THE
UNITED STATES OR ANY STATE, LOCAL OR FOREIGN JURISDICTION, OR REGISTERED
AS THE DOMESTIC PARTNER OF THE PERSON WITH ANY REGISTRY MAINTAINED BY
THE EMPLOYER OF EITHER PARTY OR ANY STATE, MUNICIPALITY, OR FOREIGN
JURISDICTION; OR
(B) IS FORMALLY RECOGNIZED AS A BENEFICIARY OR COVERED PERSON UNDER
THE OTHER PERSON'S EMPLOYMENT BENEFITS OR HEALTH INSURANCE; OR
(C) IS DEPENDENT OR MUTUALLY INTERDEPENDENT ON THE OTHER PERSON FOR
SUPPORT, AS EVIDENCED BY THE TOTALITY OF THE CIRCUMSTANCES INDICATING A
MUTUAL INTENT TO BE DOMESTIC PARTNERS INCLUDING BUT NOT LIMITED TO:
COMMON OWNERSHIP OR JOINT LEASING OF REAL OR PERSONAL PROPERTY; COMMON
HOUSEHOLDING, SHARED INCOME OR SHARED EXPENSES; CHILDREN IN COMMON;
SIGNS OF INTENT TO MARRY OR BECOME DOMESTIC PARTNERS UNDER PARAGRAPH (A)
OR (B) OF THIS SUBDIVISION; OR THE LENGTH OF THE PERSONAL RELATIONSHIP
OF THE PERSONS.
EACH PARTY TO A DOMESTIC PARTNERSHIP SHALL BE CONSIDERED TO BE THE
DOMESTIC PARTNER OF THE OTHER PARTY. "DOMESTIC PARTNER" SHALL NOT
INCLUDE A PERSON WHO IS RELATED TO THE OTHER PERSON BY BLOOD IN A MANNER
THAT WOULD BAR MARRIAGE TO THE OTHER PERSON IN NEW YORK STATE. "DOMESTIC
PARTNER" SHALL ALSO NOT INCLUDE ANY PERSON WHO IS LESS THAN EIGHTEEN
YEARS OF AGE OR WHO IS THE ADOPTED CHILD OF THE OTHER PERSON OR WHO IS
A. 904--A 3
RELATED BY BLOOD IN A MANNER THAT WOULD BAR MARRIAGE IN NEW YORK STATE
TO A PERSON WHO IS THE LAWFUL SPOUSE OF THE OTHER PERSON.
5. The donee shall not accept the gift under the following circum-
stances:
(a) the donee has actual notice of contrary indication by the dece-
dent;
(b) where the donor has not properly executed an organ donor card,
driver's license authorization to make an anatomical gift, pursuant to
paragraph (a) of subdivision one of section five hundred four of the
vehicle and traffic law, registered in the New York state organ and
tissue donor registry under section forty-three hundred ten of this
article, or otherwise given written authorization for organ or tissue
donation, or has revoked any such authorization, and the gift is opposed
by a person or persons in the highest priority available of the classes
specified in paragraph (a), (b), (c), (d) [or], (e), (F), (G) OR (H) of
subdivision two of this section; or
(c) the donee has reason to believe that an anatomical gift is contra-
ry to the decedent's religious or moral beliefs.
[4.] 6. A gift of all or part of a body authorizes any examination
necessary to assure medical acceptability of gift for the purposes
intended.
[5.] 7. The rights of the donee created by the gift are paramount to
the rights of others except as provided by section [four thousand three]
FORTY-THREE hundred eight of this article.
8. THE PERSON WHO DOCUMENTS THE MAKING, AMENDING OR REVOKING OF AN
ANATOMICAL GIFT, ACTING REASONABLY AND IN GOOD FAITH IN ACCORDANCE WITH
THIS ARTICLE, MAY ACCEPT AN ANATOMICAL GIFT UNDER THIS ARTICLE MADE BY A
PERSON WHO REPRESENTS THAT HE OR SHE IS ENTITLED TO CONSENT TO THE
DONATION.
S 2. Section 4351 of the public health law, as added by chapter 668 of
the laws of 1997 and subdivision 4 as amended by chapter 639 of the laws
of 2006, is amended to read as follows:
S 4351. Duties of hospital administrators, organ procurement organiza-
tions, eye banks and tissue banks. 1. (a) When the death of a person in
a hospital has occurred or is imminent, the hospital shall contact the
federally designated organ procurement organization in order to make a
preliminary determination of the suitability of the person for organ
donation, except where not required by paragraph (c) of this subdivi-
sion.
(b) Where contact with the federally designated organ procurement
organization is not required under criteria developed regionally by the
federally designated organ procurement organization subject to the
approval of such criteria by the department, the hospital shall contact
the appropriate eye bank or tissue bank, except where not required by
paragraph (c) of this subdivision.
(c) The federally designated organ procurement organization, in
consultation with the tissue procurement providers, may issue criteria
under which a hospital shall not be required to make the contact under
this subdivision.
(d) All hospitals shall select at least one eye bank or tissue bank
for the procurement of tissue, as defined in section forty-three hundred
sixty of this chapter. A hospital shall notify the federally designated
organ procurement organization of its choice of tissue procurement
providers. If a hospital selects more than one eye bank or tissue bank
as a procurement provider, it may specify a rotation of referrals for
purposes of tissue procurement.
A. 904--A 4
2. Where the federally designated organ procurement organization, eye
bank or tissue bank is contacted, it shall, in consultation with the
hospital, after appropriate medical screening (which may include sero-
logical testing if applicable) determine suitability for organ, eye and
tissue donation, as appropriate. Where a federally designated organ
procurement organization is contacted, it shall contact the appropriate
eye bank or tissue bank with respect to suitability for eye or tissue
donation.
3. If the federally designated organ procurement organization, eye
bank or tissue bank determines that organ, eye or tissue donation,
respectively, is not appropriate based on established medical criteria,
this shall be noted by hospital personnel on the patient's record, and
no further action with respect to organ, eye or tissue donation, respec-
tively, is necessary.
4. Where a patient is a suitable candidate for organ, eye or tissue
donation and where the patient has not properly executed an organ donor
card, driver's license authorization to make an anatomical gift, pursu-
ant to paragraph (a) of subdivision one of section five hundred four of
the vehicle and traffic law, registered in the New York state organ and
tissue registry under section forty-three hundred ten of this [article]
CHAPTER, or otherwise given written authorization for organ, eye or
tissue donation, the hospital or its designee shall cause a timely
request to be made to any of the following persons, in order of priority
stated, when persons in prior classes are not REASONABLY available,
WILLING, AND ABLE TO ACT, and in the absence of actual notice of contra-
ry intentions by the decedent, or actual notice of opposition by a
person or persons in the highest priority available of the classes spec-
ified in paragraph (a), (b), (c), (d), [or] (e), (F) OR (G) of this
subdivision, or other reason to believe that an anatomic gift is contra-
ry to the decedent's religious beliefs, to consent to the gift of all or
any part of the decedent's body for any purpose specified in article
forty-three of this chapter:
(a) THE PERSON DESIGNATED AS THE DECEDENT'S HEALTH CARE AGENT UNDER
ARTICLE TWENTY-NINE-C OF THIS CHAPTER, SUBJECT TO ANY WRITTEN STATEMENT
IN THE HEALTH CARE PROXY FORM;
(B) THE PERSON DESIGNATED AS THE DECEDENT'S AGENT IN A WRITTEN INSTRU-
MENT UNDER ARTICLE FORTY-TWO OF THIS CHAPTER, SUBJECT TO ANY WRITTEN
STATEMENT IN THE WRITTEN INSTRUMENT;
(C) the spouse, IF NOT LEGALLY SEPARATED FROM THE PATIENT, OR THE
DOMESTIC PARTNER;
[(b)] (D) a son or daughter eighteen years of age or older;
[(c)] (E) either parent;
[(d)] (F) a brother or sister eighteen years of age or older;
[(e)] (G) a guardian of the person of the decedent at the time of his
or her death.
5. FOR THE PURPOSES OF THIS SECTION, "REASONABLY AVAILABLE" MEANS
THAT A PERSON TO BE CONTACTED CAN BE CONTACTED WITHOUT UNDUE EFFORT AND
WILLING AND ABLE TO ACT IN A TIMELY MANNER CONSISTENT WITH EXISTING
MEDICAL CRITERIA NECESSARY FOR THE MAKING OF AN ANATOMICAL GIFT.
6. FOR THE PURPOSES OF THIS SECTION, "DOMESTIC PARTNER" MEANS A PERSON
WHO, WITH RESPECT TO ANOTHER PERSON:
(A) IS FORMALLY A PARTY IN A DOMESTIC PARTNERSHIP OR SIMILAR RELATION-
SHIP WITH THE OTHER PERSON, ENTERED INTO PURSUANT TO THE LAWS OF THE
UNITED STATES OR ANY STATE, LOCAL OR FOREIGN JURISDICTION, OR REGISTERED
AS THE DOMESTIC PARTNER OF THE PERSON WITH ANY REGISTRY MAINTAINED BY
A. 904--A 5
THE EMPLOYER OF EITHER PARTY OR ANY STATE, MUNICIPALITY, OR FOREIGN
JURISDICTION; OR
(B) IS FORMALLY RECOGNIZED AS A BENEFICIARY OR COVERED PERSON UNDER
THE OTHER PERSON'S EMPLOYMENT BENEFITS OR HEALTH INSURANCE; OR
(C) IS DEPENDENT OR MUTUALLY INTERDEPENDENT ON THE OTHER PERSON FOR
SUPPORT, AS EVIDENCED BY THE TOTALITY OF THE CIRCUMSTANCES INDICATING A
MUTUAL INTENT TO BE DOMESTIC PARTNERS INCLUDING BUT NOT LIMITED TO:
COMMON OWNERSHIP OR JOINT LEASING OF REAL OR PERSONAL PROPERTY; COMMON
HOUSEHOLDING, SHARED INCOME OR SHARED EXPENSES; CHILDREN IN COMMON;
SIGNS OF INTENT TO MARRY OR BECOME DOMESTIC PARTNERS UNDER PARAGRAPH (A)
OR (B) OF THIS SUBDIVISION; OR THE LENGTH OF THE PERSONAL RELATIONSHIP
OF THE PERSONS.
EACH PARTY TO A DOMESTIC PARTNERSHIP SHALL BE CONSIDERED TO BE THE
DOMESTIC PARTNER OF THE OTHER PARTY. "DOMESTIC PARTNER" SHALL NOT
INCLUDE A PERSON WHO IS RELATED TO THE OTHER PERSON BY BLOOD IN A MANNER
THAT WOULD BAR MARRIAGE TO THE OTHER PERSON IN NEW YORK STATE. "DOMESTIC
PARTNER" SHALL ALSO NOT INCLUDE ANY PERSON WHO IS LESS THAN EIGHTEEN
YEARS OF AGE OR WHO IS THE ADOPTED CHILD OF THE OTHER PERSON OR WHO IS
RELATED BY BLOOD IN A MANNER THAT WOULD BAR MARRIAGE IN NEW YORK STATE
TO A PERSON WHO IS THE LAWFUL SPOUSE OF THE OTHER PERSON.
7. The person initiating the request shall be designated by a hospital
and shall be a representative of a federally designated organ procure-
ment organization, eye bank, tissue bank, or a designated requestor. As
used in this section a "designated requestor" shall mean a person who
has completed a course provided by a federally designated organ procure-
ment organization, eye bank or tissue bank, whichever is applicable, on
how to approach potential donor families and request organ, eye, or
tissue donation.
[6.] 8. Any employee or agent of a federally designated organ procure-
ment organization, eye bank or tissue bank acting pursuant to this
section shall be held to the same standard of confidentiality as that
imposed on employees of the hospital.
[7.] 9. THE PERSON WHO DOCUMENTS THE MAKING, AMENDING OR REVOKING OF
AN ANATOMICAL GIFT, ACTING REASONABLY AND IN GOOD FAITH IN ACCORDANCE
WITH THIS ARTICLE, MAY ACCEPT AN ANATOMICAL GIFT UNDER THIS ARTICLE MADE
BY A PERSON WHO REPRESENTS THAT HE OR SHE IS ENTITLED TO CONSENT TO THE
DONATION.
10. The provisions of subdivision three of section forty-three hundred
six of this chapter shall apply to this section. To the extent permissi-
ble under such subdivision, any person or organization acting pursuant
to this section, shall be legally responsible for any negligent or
intentional act or omission committed by such entity or its employees or
agents.
[8.] 11. A gift made pursuant to the request required by this section
shall be executed pursuant to applicable provisions of article forty-
three of this chapter.
[9.] 12. The commissioner shall establish regulations concerning the
training of persons who may be designated to perform the request, and
the procedures to be employed in making it.
[10.] 13. The commissioner shall establish such additional regulations
as are necessary for the implementation of this section.
S 3. Paragraph (f) of subdivision 5 of section 2981 of the public
health law, as added by chapter 540 of the laws of 2000, is amended to
read as follows:
(f) A health care proxy may include the principal's wishes or
instructions regarding organ and tissue donation AND MAY LIMIT THE
A. 904--A 6
HEALTH CARE AGENT'S AUTHORITY TO CONSENT TO ORGAN OR TISSUE DONATION OR
DESIGNATE ANOTHER PERSON TO DO SO, UNDER ARTICLE FORTY-THREE OF THIS
CHAPTER. Failure to state wishes or instructions shall not be construed
to imply a wish not to donate.
S 4. Section 4201 of the public health law is amended by adding a new
subdivision 4-a to read as follows:
4-A. A WRITTEN INSTRUMENT UNDER THIS SECTION MAY LIMIT THE DISPOSITION
OF REMAINS AGENT'S AUTHORITY TO CONSENT TO ORGAN OR TISSUE DONATION OR
DESIGNATE ANOTHER PERSON TO DO SO, UNDER ARTICLE FORTY-THREE OF THIS
CHAPTER. FAILURE TO STATE WISHES OR INSTRUCTIONS SHALL NOT BE CONSTRUED
TO IMPLY A WISH NOT TO DONATE.
S 5. This act shall take effect on the sixtieth day after it shall
have become a law.